Mr Tristan Morgan

Profession: Radiographer

Registration Number: RA56049

Interim Order: Imposed on 31 Aug 2018

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 14/02/2020 End: 17:00 14/02/2020

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

Whilst registered with the Health and Care Professions Council as a radiographer:
1. On 26 April 2019 at the Central Criminal Court, you were convicted of:

  1. Arson with intent to endanger life or being reckless as to whether the life of another    would be thereby endangered
  2. Encouragement of terrorism
  3. Collection of information for terrorist purposes

2. By reason of your conviction your fitness to practise if impaired.

Finding

Preliminary Matters
Service of Notice
1. The notice of this hearing was sent to the Registrant at his address as it appeared in the register on 12 December 2019 and on the same day to the Registrant at the hospital where he is being detained. The notice contained the date, time and venue of today’s hearing.

2. The Panel accepted the advice of the Legal Assessor and is satisfied that notice of today’s hearing has been served in accordance with Rule 6(1) of the Conduct and Competence Committee Rules 2003 (the “Rules”).

Proceeding in the absence of the Registrant
3. The Panel then went on to consider whether to proceed in the absence of the Registrant pursuant to Rule 11 of the Rules. In doing so, it considered the submissions of Mr Lloyd on behalf of the HCPC. He referred to the contents of an email dated 13 December 2019 from the Deputy Ward Manager at the hospital where the Registrant is being detained which states: “Thank you for the paperwork. I have printed it off for Tristan and he has read it all. Tristan says that he will not be attending the hearing and will not be sending any representation. Hope this explains the situation to date for him”.

4. Mr Lloyd submitted that the HCPC has taken all reasonable steps to serve the notice on the Registrant. Mr Lloyd further submitted that the Registrant was aware of the hearing and had voluntarily absented himself from the hearing as the Deputy Ward Manager of the hospital had submitted a response, on behalf of the Registrant, for the attention of the Panel. He reminded the Panel that the Registrant had not sought an adjournment and that there was a public interest in this matter being dealt with expeditiously.

5. The Panel 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 had the discretion to proceed in the absence of the Registrant. He advised the Panel that the discretion was to be exercised with the utmost care and caution as set out in the case of R v Jones [2002] UKHL 5.

6. The Legal Assessor also referred the Panel to the case of GMC v Adeogba and Visvardis [2016] EWCA Civ 162 and advised that the Adeogba case reminded the Panel that its primary objective is the protection of the public and of the public interest. In that regard, the case of Adeogba was clear that: “where there is good reason not to proceed, the case should be adjourned; where there is not, ... , it is only right that it should proceed….there is a burden on...all professionals subject to a regulatory regime, to engage with the regulator, both in relation to the investigation and ultimate resolution of allegations made against them. That is part of the responsibility to which they sign up when being admitted to the profession.”

7. It was clear, from the principles derived from case law, that the Panel was required to ensure that fairness and justice were maintained when deciding whether or not to proceed in a Registrant’s absence.

8. The Panel was satisfied that all reasonable efforts had been made by the HCPC to notify the Registrant of the hearing. It was also satisfied that the Registrant was aware of the hearing and had voluntarily absented himself.

9. In deciding whether to exercise its discretion to proceed in the absence of the Registrant, the Panel took into consideration the HCPC’s practice note entitled ‘Proceeding in the Absence of a Registrant’. The Panel weighed its responsibility for public protection and the expeditious disposal of the case with the Registrant’s right to a fair hearing.

10. In reaching its decision the Panel took into account the following:
• the Registrant has indicated that he will not be attending the hearing and will not be making any representations;
• he has not made an application to adjourn today’s hearing.
• there is a public interest that this matter proceeds expeditiously.

11. The Panel was satisfied that the Registrant had voluntarily absented himself from the hearing. Having weighed the public interest for expedition in cases against the Registrant’s own interests, the Panel decided to proceed in the Registrant’s absence.

Application to amend the charge
12. Mr Lloyd, on behalf of the HCPC, made an application to amend the Allegation. The Registrant had been put on notice of the proposed amendments in a letter dated 4 December 2019. He submitted that the proposed minor amendment did not change the substance of the Allegation the Registrant faced, but merely ensured that the Allegation more accurately reflected the wording of the offence for which the Registrant was convicted on the basis of the Judge’s sentencing remarks.

13. The proposed amendments are set out above in bold.

14. The Registrant has not raised any objection to the particulars being amended.

15. The Panel accepted the advice of the Legal Assessor and carefully considered the HCPC application to amend the particulars. The Panel concluded, after reviewing the proposed amendment, that it would agree to the particulars being amended for the following reasons:
i. the Registrant had been provided with significant notice of the HCPC’s intention to amend the Allegation, having been put on notice over two months before the commencement of the substantive hearing;
ii. the Registrant had not objected to the proposed amendments and;
iii. the proposed amendment does not widen the scope or nature of the Allegation, but merely seeks to more accurately reflect the wording of the charge to which the Registrant entered a guilty plea at the Crown Court. The Panel noted that the Judge’s sentencing remarks refer to the Registrant being “reckless as to the effect of your conduct”.

16. The Panel concluded that the proposed amendment of the particular are minor and did not materially affect the nature or seriousness of the Allegation. In all the circumstances, there was no likelihood of injustice to the Registrant. The Panel therefore agreed to the proposed amendment.

Background
17. On 25 July 2018, the HCPC received a referral from the Registrant’s employer, the Royal Devon and Exeter NHS Foundation Trust (“the Trust”). The Trust informed the HCPC that the Registrant had been arrested in connection with an offence of arson at Exeter Synagogue on 21 July 2018.

18. The HCPC was subsequently informed by Devon and Cornwall Police in August 2018, that the Registrant had been charged with arson with intent to endanger life.

19. On 29 April 2019, the HCPC was informed that the Registrant had been charged with two further terrorism related offences in addition to arson.

20. On 5 July 2019, the Registrant pleaded guilty and was convicted of arson with intent to endanger life, encouragement of terrorism and collection of information for terrorist purposes. He was sentenced to three Section 37 (41) Mental Health Act Hospital Orders. An order for forfeiture and destruction of material was also ordered and a notification requirement under the Terrorism Act 2008 for a period of 10 years was made.

Decision on Facts
21. The Panel has been shown the certificate of conviction from the Central Criminal Court in relation to the Registrant. It sets out the offences for which the Registrant was convicted and the sentence imposed on him.

22. The Panel accepted the advice of the Legal Assessor. It took into account Rule 10(1)(d) of the Rules which states that “where the registrant has been convicted of a criminal offence, a certified copy of the certificate of conviction….shall be admissible as proof of that conviction and of the findings of fact upon which it is based”.

23. Accordingly, the Panel finds the fact of the conviction proved.

Decision on Grounds
24. The Panel next considered the statutory ground. Because this is a conviction case and the Panel has been provided with the memorandum of conviction, and finds the fact of the conviction proved, the Panel found the statutory ground to be made out.

Decision on Impairment
25. The Panel then went on to consider whether the Registrant’s fitness to practise is currently impaired by reason of the conviction.

Submissions
26. Mr Lloyd outlined the background facts of the conviction and submitted that the Registrant’s fitness to practise is currently impaired in that that the conviction was a serious matter, and the public Interest requires that a finding of impairment be found so as not to undermine the public confidence in the profession and the regulatory process. He submitted that the relevant considerations in this case are the seriousness of the charge and the nature of the sentence.

27. He stated “that there was a lack of clear and cogent evidence of insight and remediation”. He did, however, state that the Registrant had made some expression of concern about the potential loss of life as a result of his actions.

28. No submissions by or on behalf of the Registrant have been received.

Panel’s consideration and decision
29. In reaching its decision, the Panel had regard to all the evidence before it. It took account of the submissions of Mr Lloyd on behalf of the HCPC. The Panel accepted the advice of the Legal Assessor.

30. The Panel is mindful that its role was not to go behind the conviction nor was it to seek to retry the criminal case. Rather, its task was to determine whether the Registrant’s fitness to practise is impaired, based upon the nature, circumstances and gravity of the criminal offence concerned. The Panel considered whether the Registrant’s actions had brought the Radiography profession into disrepute or had undermined public confidence in that profession.

31. The Legal Assessor also advised the Panel that it should bear in mind the principle of public protection in its broadest sense. The Panel was advised that it could take into consideration whether the Registrant pleaded guilty to the offence and if he did, at what stage in the criminal proceedings. A guilty plea entered at the first reasonable opportunity is indicative of greater insight on the part of the Registrant than one entered at the last moment.

32. The Panel has had regard to the sentence imposed, but has also borne in mind that the sentence imposed is not necessarily a good indicator of the seriousness of the offence when considered in a regulatory context in terms of maintaining public confidence in the profession: R (Low) v General Osteopathic Council [2007] EWGC 2839 (Admin). This is because the prime consideration of regulatory tribunals is the protection of the public and of the wider public interest. As Dame Janet Smith noted in the Fifth Shipman Inquiry Report,

“The fact that the court has imposed a very low penalty or even none at all should not lead the [regulator] to the conclusion that the case is not serious in the context of [its own] proceedings The role of the [regulator] in protecting [service users] involves different considerations from those taken into account by the criminal courts when passing sentence. What may well appear relatively trivial in the context of general criminal law may be quite serious in the context of [professional] practice.”

33. In considering whether the Registrant’s fitness to practise is currently impaired by reason of his conviction, the Panel adopted the approach formulated by Dame Janet Smith in her Fifth report of the Shipman inquiry by asking itself the following questions:

Does the Registrant’s conviction, and the facts relating to the conviction show that his fitness to practise is impaired in the sense that he:
a) has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/or
b) has in the past brought and/or is liable in the future to bring the profession into disrepute; and/or
c) has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the profession and/or
d) …..

34. The Panel determined that limbs a), b) and c) applied.

35. The Panel first considered the personal component of impairment and considered the issues of insight and remediation. It noted that since the Registrant’s conviction, there was no meaningful evidence of demonstrable insight or steps towards remediation.

36. In relation to limb a), the Panel was mindful that it is not the Council’s case, and there is no evidence to suggest, that the Registrant has caused harm to service users in the past. However, it has seen little evidence of demonstrable insight or steps towards remediation. The Panel was therefore of the view that the Registrant’s ideological views, which he has acted upon and been convicted of offences for, could pose a risk to members of the public and service users.

37. The Panel therefore determined that the Registrant’s fitness to practise is currently impaired by reason of his conviction on the personal component of impairment.

38. The Panel then considered the public component of impairment.

39. The Panel determined that by reason of his conviction, the Registrant had breached a fundamental tenet of the profession, namely that it is incumbent on members of the profession to abide by the law. The Panel determined that the conviction of the Registrant related to a serious criminal activity. The Panel noted the features of the criminal offence in that it was motivated by hatred and ideological beliefs and was deliberate; the Registrant having intentionally started a fire to burn down a Synagogue. The sentencing Judge at the Central Criminal Court, whilst recognising the Registrant’s mental health issues, noted that the Registrant’s offending took place against a background of anti-Semitic beliefs and an obsession with “abhorrent anti-Semitic material”. 24 knives were found at the Registrant’s home together with a racist handwritten note and a large volume of material “which demonstrated a radical anti-Semitic, neo-Nazi mindset as well as hatred on non-white people”. The Judge identified that the Registrant had disseminated a hateful podcast in 2015.

40. At the time of sentencing, the Judge stated: “you currently present a high risk of future acts of violence which could result in serious and life-threatening harm, that risk is linked, say the psychiatrists, to your mental disorder, and exacerbated through your misuse of alcohol and illicit drugs…..you are dangerous when affected by your mental condition”.

41. The Panel was mindful of Standard 9.1 of the HCPC’s Standards of Conduct, Performance and Ethics (2016) which states:
9 Be honest and trustworthy.
9.1.  You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.

42. Given the nature and seriousness of the offences committed by the Registrant, the Panel concluded that the Registrant’s conduct fell far below this standard. The Panel considered that a right-minded member of the public, hearing all of the circumstances and evidence of the case, would consider that this case does require a finding of current impairment if public confidence in the profession and in the regulatory process were to be maintained.

43. The Panel determined that the serious nature of the conviction was such that the need to uphold professional standards and public confidence in the professions would be seriously undermined if a finding of impairment were not made. Therefore, the Panel determined that the Registrant’s fitness to practise is currently impaired by reason of his conviction on the public component of impairment.

Decision on Sanction
HCPC submissions
44. Mr Lloyd submitted to the Panel that the Registrant was convicted of serious criminal offences. He reminded the Panel to have regard to the HCPC’s Sanctions Policy (2019) (“the Sanctions Policy”). He referred to the approach to be taken as set out at paragraphs 80-84 of the sanctions Policy.

45. He reminded the Panel that that the Registrant has been made the subject of an indefinite Hospital Order and submitted that, in the circumstances, unrestricted practice should be out of the question and that a sanction at the higher end was appropriate.

46. He referred the Panel to the Judge’s sentencing remarks, noting that the Registrant’s conduct was premeditated and racially motivated, being based on anti-Semitic and neo-Nazi beliefs. He referred to paragraph 130 of the Sanctions Policy making reference to the serious, deliberate and reckless nature of the offences committed.

47. He submitted that the Panel should balance the Registrant’s interest with those of the public. He submitted that the Registrant had not demonstrated insight or taken any steps towards remediation. The Registrant’s behaviour was so serious and repugnant that the public interest demanded a firm and resolute sanction to maintain confidence in the profession and the regulatory process.

48. No submissions have been received by or on behalf of the Registrant.

49. The Panel accepted the advice of the Legal Assessor. He advised the Panel that the full range of sanctions is available to it as this was a case involving a criminal conviction, and he reminded the Panel that it was not to go behind the conviction. He advised the Panel that it should bear in mind its duty to protect members of the public and also the public interest which includes maintaining and declaring proper standards of conduct and behaviour, maintaining the reputation of the profession, and maintaining public confidence in the profession and the regulatory process.

50. He advised that, whilst the Panel was entitled to take into consideration the sentence that the Criminal Court imposed upon the Registrant, the sentence imposed is not necessarily a good indicator of the seriousness of the matter in the context of regulatory proceedings. That was because the prime considerations that apply in regulatory proceedings were:
a) Protection of the Public;
b) Reputational harm to the profession;
c) Public confidence in the profession and the regulatory process; and
d) Relevant professional standards of behaviour and the seriousness of any departure from those standards.

51. The Legal Assessor drew the Panel’s attention to the case of CHRE v GDC and Fleischmann (2005) EWHC 87 and the general principle that where a practitioner had been convicted of a serious criminal offence, [he] should not be permitted to resume [his] practice until [he] has satisfactorily completed [his] sentence. The Legal Assessor advised the Panel that as such, it should take into consideration the facts of the offence in question and determine whether or not it was a serious criminal offence. He advised that the seriousness of a criminal offence is not necessarily determined by the type of sentence imposed, but can also be determined by the circumstances of the offending behaviour. These are factors that can affect the reputation of the profession.

52. The Legal Assessor advised the Panel that it was entitled to take into consideration factors that it considered to be aggravating and mitigating circumstances of the criminal offence when deciding what sanction would be sufficient in the public interest.

53. The Legal Assessor advised the Panel that any sanction it imposes must be the least restrictive sanction that is sufficient to protect the public and the public interest. It should take into consideration the aggravating and mitigating factors in the case. He reminded the Panel that the purpose of a sanction is not punitive, although it may have that effect. He advised the Panel that it should consider any sanction in ascending order and to apply the least restrictive sanction necessary to protect the public and the public interest.

Panel’s consideration and determination
54. The Panel accepted the advice of the Legal Assessor and had due regard to the Sanctions Policy. The Panel has considered any aggravating and mitigating factors and has borne in mind the principle of proportionality.

55. The Panel identified the following aggravating factors:
(a) the Registrant had been convicted of serious criminal offences motivated by  hate.
(b) the offences were premeditated and potentially had a serious impact on the community.
(c) the Registrant has not demonstrated any meaningful insight into his behaviour since his convictions (noting his guilty pleas at the Crown Court) and there is no evidence before the Panel that the Registrant has remediated his behaviour.
(d) the Registrant has not demonstrated remorse.
(e) the Registrant’s actions were the result of long held views going back to 2015.
(f) the Registrant had been found to have not just been in possession of, but also disseminated hate material.

56. The Panel identified the following mitigating factors:
(a) The Registrant entered early guilty pleas at the Crown Court;
(b) He had a previously good employment history;
(c) The Registrant’s longstanding mental health issues contributed to his offending.

57. The Panel reminded itself that if a registrant has been convicted of a serious criminal offence and is still serving their sentence at the time the matter comes before a panel, normally the Panel should not permit the registrant to resume their practice until that sentence has been satisfactorily completed CHRE v GDC and Fleischmann (2005) EWHC 87. The Panel noted that the Registrant is still subject to a Hospital Order and is likely to remain so for the foreseeable future. He also remains subject to a notification requirement under the Terrorism Act which lasts until 4 July 2029. The Panel could not therefore see any good reason to depart from the above-mentioned principle.

58. The Panel first considered taking no action but concluded that, given the seriousness of the criminal offences committed, this would be wholly inappropriate and inadequate given the wider public interest of maintaining confidence in both the profession and the regulatory process. Such an outcome was therefore neither appropriate nor proportionate in the circumstances.

59. The Panel considered mediation but considered that this was not an appropriate outcome given the facts of this case in that it would not be relevant to addressing the public interest concerns identified.

60. The Panel then considered whether to impose a Caution Order and had regard to paragraphs 99 - 102 of the Sanctions Policy as to when such an order might be appropriate. The Panel determined that the circumstances of the criminal offences are such that a Caution Order is also not appropriate to meet the public interest concerns identified for the same reason as set out above.

61. The Panel next considered the imposition of a Conditions of Practice Order and had regard to paragraphs 105 - 117 of the Sanctions Policy. The Panel has had regard to the fact that there are no concerns with the Registrant’s practice or competency as a Radiographer. However, the nature and seriousness of the criminal offences makes a Conditions of Practice Order inappropriate as a sanction. A Conditions of Practice Order, which focusses on the need to remedy practice deficiencies, would not be appropriate or relevant to the facts of this case. In any event, as the Registrant is subject to a Hospital Order, he would not be able to comply with any conditions, even if they could be formulated. As a result, such a sanction would be wholly unworkable.

62. The Panel then considered whether a period of suspension would be a sufficient and proportionate response. It had regard to paragraphs 118-120 of the Sanctions Policy.

63. The Panel bore in mind the findings it had already made, namely that the Registrant has been convicted of serious criminal offences and has identified the need to protect the public and public interest. There is no demonstrable evidence before the Panel that the Registrant has developed insight or remediated his failings. Having done so, it concluded that such a sanction would be inadequate to protect the public and maintain a proper degree of confidence in the profession and the regulatory process, and to declare and maintain proper standards among fellow professionals.

64. The Panel therefore went on to consider striking the Registrant’s name off the HCPC Register of Radiographers. It had regard to paragraphs 127-132 of the Sanctions Policy. The Panel took into account the impact that such an order would have on the Registrant, noting the fact that he is currently detained under a Hospital Order, in terms of his finances and his reputation.

65. The Panel had regard to paragraph 93 of the Sanctions Policy which states: “Registrants have a duty to ensure that their conduct justifies the public’s trust and confidence in them and their profession (see standard 9.1 of the Standards of conduct, performance and ethics). Where a registrant has exhibited violent behaviour, this is highly likely to affect the public’s confidence in their profession and pose a risk to the public. In these cases, a more serious sanction may be warranted”.

66. It concluded that the Registrant’s views and convictions were fundamentally incompatible with remaining on the register. The nature and gravity of the Registrant’s conviction was such that only a Striking-Off Order would be sufficient to protect the public and maintain and declare proper standards of conduct and behaviour, to maintain the reputation of the profession, and to maintain public confidence in the profession.

67. In the light of the above, the Panel is satisfied that the appropriate and proportionate sanction is a Striking-Off Order.

Order

The Registrar is directed to strike the name of Mr Tristan Morgan from the Register on the date this Order comes into effect.

Notes

Right of Appeal
You may appeal to the High Court in England and Wales against the Panel’s decision and the order it has made against you.

Under Article 29(10) of the Health Professions Order 2001, any appeal must be made within 28 days of the date when this notice is served on you. The Panel’s order will not take effect until the appeal period has expired or, if you appeal, until that appeal is disposed of or withdrawn.

European Alert Mechanism
In accordance with Regulation 67 of the European Union (Recognition of Professional Qualifications) Regulations 2015, the HCPC will inform the competent authorities in all other EEA States that your right to practise has been prohibited.

You may appeal to the County Court against the HCPC’s decision to do so.  Any appeal must be made within 28 days of the date when this notice is served on you. This right of appeal is separate from your right to appeal against the decision and order of the Panel.

Application for interim order
Mr Lloyd submitted that the Panel should hear his application for an Interim Suspension Order in the absence of the Registrant.

Having accepted the advice of the Legal Assessor who made reference to the case of Sanusi v General Medical Council [2019] EWCA Civ 1172, the Panel decided that it was fair and appropriate to proceed and hear the application in the absence of the Registrant. The Registrant was advised in the Notice of Hearing dated 12 December 2019 that an application for an interim order might be made. There was nothing to indicate that the Registrant wished to make submissions in relation to this application, and the Panel concluded that it was in the public interest to proceed.

Mr Lloyd made an application for an Interim Suspension Order for the maximum period of 18 months to cover the 28 day appeal period and the time that might be required to conclude any appeal.

Having heard submissions from Mr Lloyd, on behalf of the HCPC and having taken advice from the Legal Assessor, the Panel makes an Interim Suspension Order, for a period of eighteen months under Article 31(2) of the Health Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest.

The Panel did not consider that the risks in this case could be addressed by an Interim Conditions of Practice Order because of its earlier conclusions that conditions would not be appropriate to protect the public or the public interest.

The Panel decided to make an Interim Suspension Order for a period of 18 months, the maximum duration, to allow sufficient time for the disposal of any appeal.

Interim Order
The Panel makes an Interim Suspension under Article 31(2) of the Health Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest. 

This order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.

Hearing History

History of Hearings for Mr Tristan Morgan

Date Panel Hearing type Outcomes / Status
14/02/2020 Conduct and Competence Committee Final Hearing Struck off