John Junior Shakes

Preliminary Matters

Documentation

1. The Panel received the HCPC hearing bundle of 303 pages.

2. At the beginning of the hearing, it became apparent that the Registrant said that he had not had sight of the HCPC hearing bundle because he had been unable to access the electronic version. The Registrant was provided with a hard copy of the bundle and given time to read it and he confirmed that he was content for the hearing to proceed.

3. In addition, during the Panel’s deliberation on the facts, the Panel received a copy of an email from the Registrant’s solicitor confirming the dates of his incarceration. This was provided to the Panel with the consent of both parties.

Application for part of the hearing to be in private

4. Mr Smart, on behalf of the HCPC, made an application for the Panel to hear parts of the evidence in private, pursuant to rule 10(1)(a) of the HCPC (Conduct and Competence Committee) (Procedure) Rules 2003 (“the Rules”). He told the Panel that this was an application he made jointly on behalf of the HCPC and the Registrant. Mr Smart submitted that it may be necessary for evidence relating to the Registrant’s health and/or private life to be heard during the hearing and it would be appropriate for this to be considered in private.

5. The Registrant agreed with the application. He also submitted that all matters relating to his criminal convictions should be heard in private as in his view, they related to issues in his private life unrelated to his professional work.

6. The Panel received and accepted the advice of the Legal Assessor that the default position is that HCPTS hearings take place in public. However, the Panel may consider whether there is a ground to depart from this principle, as specified in Rule 10(1)(a) of the HCPC (Conduct and Competence Committee) (Procedure) Rules 2003, namely for the protection of the Registrant’s private life or in the interests of justice.

7. The Panel was satisfied in this case that it may be necessary to hear evidence relating to health matters and medical evidence concerning the Registrant and it was appropriate that as these matters related to the Registrant’s private life they should be considered in private. The Panel did not consider this would extend to hearing the conviction issues, which were the subject of the allegations, in private as the convictions were matters of public record and absent specific reasons, the principle that allegations should be heard in public applied.

Application to amend the allegations

8. Mr Smart applied to amend a number of particulars of the allegations, as indicated by the parts struck through and shown in bold above.

9. Mr Smart submitted that the amendments sought were intended to clarify the allegations and ensure their accuracy. They made no substantive changes to the allegation and added no new issues. Mr Smart submitted that no prejudice would be caused to the Registrant.

10. Mr Smart also stated that the HCPC intended to offer no evidence in respect of particulars 4(a) and 4(b) because, as the Memorandum of Conviction from Cardiff Magistrates Court indicated, these counts had been withdrawn in the criminal proceedings and subsumed into the other counts as described in 4(c) and 4(d). In respect of particular 8, the HCPC’s evidence was insufficient to support the allegation and so the HCPC did not intend to pursue it.

11. The Registrant was not able to confirm that he had received notice of the proposed amendments. However, he indicated that he had been in receipt of the allegations for some time and he did not object to the amendments sought.

12. The Panel took advice from the Legal Assessor. The Panel accepted that the amendments sought were not substantive but would amend the particulars to improve their clarity and accuracy and include relevant factual details. No substantive new issues were to be added to the allegations.

13. Mr Smart for the HCPC had stated that the HCPC intended to offer no evidence in respect of particulars 4(a), 4(b) and 8. This was, if anything, favourable to the Registrant’s case. The Panel accepted that it would not be proper for the HCPC to pursue allegations which had no prospect of being proved and it was satisfied the allegation as amended was viable and would properly represent the HCPC’s case. The Panel accepted it would in these circumstances formally find these particulars not proved.

14. The Panel considered whether the changes to the allegation would be unfair or cause any prejudice to the Registrant. Given the non-substantive nature of the changes, the Panel did not consider they raised any issue of unfairness or prejudice.

15. The Panel concluded that it was fair and in the interests of justice for the amendments sought by the HCPC to be made.

16. The allegation as amended will be as follows:

FTP56215

As a registered Biomedical Scientist (BS46962) your fitness to practise is
impaired by reason of misconduct and/or conviction. In that:

1. On 14 June 2016 you were convicted at Sevenoaks
Magistrates’ Court of driving a motor vehicle after consuming so much
alcohol that the proportion of it in your breath exceeded the prescribed limit,
contrary to Section 5(1)(a) of the Road Traffic Act 1988 and Schedule 2
to the Road Traffic Offenders Act.

2. On 25 January 2017 you were convicted at Maidstone
Magistrates’ Court of damaging the paintwork of a car, intending to destroy
or damage such property or being reckless as to whether such property
would be destroyed or damaged contrary to Sections 1(1) and 4
of the Criminal Damage Act 1971.

3. On 04 April 2017 you were convicted at Staines Magistrates' Court of:

a. Driving whilst disqualified from holding or obtaining a driving licence,
contrary to Section 103(1)(b) of the Road Traffic Act 1988 and
Schedule 2 to the Road Traffic Offenders Act 1988; and

b. Using a motor vehicle on a road when there was not in force in
relation to that use such a policy of insurance or such a security in
respect of third party risks as complied with the requirements of Part
VI of the Road Traffic Act 1988, contrary to Section 143 of the
Road Traffic Act 1988 and Schedule 2 to the Road Traffic
offenders Act 1988.

4. On 31 July 2017 you were convicted at Cardiff Magistrates' Court of:

a. Without reasonable excuse, doing an act on 07 May 2017 which you
were prohibited from doing by a non-molestation order, contrary to
Section 42A(1) and/or section 42A(5) of the Family Law Act 1996; [HCPC offered no evidence]

b. Without reasonable excuse, doing an act on 18 June 2017 which you
were prohibited from doing by a non-molestation order, contrary to Section 42A(1) and/or Section 42A(5) of the Family Law Act 1996; [HCPC offered no evidence]

c. Without reasonable excuse, doing an act between 11 April 2017 and
24 July 2017, which you were prohibited from doing by a non-molestation
order, contrary to Section 42A(1) and/or Section 42A(5)
of the Family Law Act 1996; and

d. Pursuing a course of conduct which amounted to harassment,
contrary to Section 2(1) and/or Section 2(2) of the Protection
from Harassment Act 1997.

5. On 19 September 2017 you were convicted at Cardiff
Magistrates’ Court of:

a. Driving a motor vehicle while disqualified from holding or obtaining a
driving licence, contrary to Section 103(1)(b) of the Road Traffic
Act 1988 and Schedule 2 to the Road Traffic Offenders Act 1988;

b. Driving a motor vehicle after consuming so much alcohol that the
proportion of it in your breath exceeded the prescribed limit,
contrary to Section 5(1)(a) of the Road Traffic Act 1968 and
Schedule 2 to Road Traffic Offenders Act 1988; and

c. Using a motor vehicle on a road when there was not in force in
relation to that use such a policy of insurance or such a security in
respect of third party risks as complied with the requirements of Part
VI of the Road Traffic Act 1988, contrary to Section 143 of the
Road Traffic Act 1988 and Schedule 2 to Road Traffic Offenders
Act 1988.

6. You did not disclose the convictions listed in particulars 1-5 above to your
employer, Barts Health NHS Trust.

7. You did not disclose the convictions listed in particulars 1, 3, 4 and 5 to the HCPC in a timely manner.

8. Did not disclose to your employer, Barts Health NHS Trust, that you were subject to fitness to practise proceedings with the HCPC [HCPC offered no evidence]

9. You informed your employer that you were sick between 12 October 2017
and 23 November 2017, during which time you were in fact in prison.

10. Your actions as described at particulars 6-9 above were dishonest.

11. Your actions as described at paragraphs 6-10 above amount to misconduct.

12. By reason of your convictions and/or misconduct, your fitness to practise
as a Biomedical Scientist is impaired.

FTP72697

As a registered Biomedical Scientist (BS46962) your fitness to practise is
impaired by reason of conviction. In that:

1.On 08 July 2019 at North Kent Magistrates’ Court you were convicted of:

a. Breach of a Restraining Order, contrary to Section 5(5) of the Protection from Harassment Act 1997;

b. Possession with intent to supply Cannabis a Class B drug, contrary to Section 5(3) of the Misuse of Drugs Act 1971; and

c. Breach of a suspended Sentence, contrary to Schedule 12 of the Criminal Justice Act 2003.

2. By reason of your conviction, your fitness to practise is impaired.

The Registrant’s response to the allegations

17. The Registrant admitted the facts alleged in particulars 1, 2, 3(a) and (b), 4(c) and (d), 5 (a), (b) and (c), 6 and 7 of FTP referral 56215. His responses to particulars 9, 10 and 11 were treated as denials.

18. In respect of referral FTP referral 72697, he admitted the facts of particulars 1(a), (b) and (c).

19. The Registrant indicated in giving his plea on the factual allegations that he intended to address the Panel on the circumstances of the convictions at the appropriate stage, if reached.

Background

20. At the relevant time, the Registrant was employed as a Biomedical Scientist with Barts Health NHS Trust (“the Trust”).

21. The allegations brought by the HCPC concern a number of criminal convictions received by the Registrant. He is alleged to have failed to declare the convictions referred to in particulars 1,3,4 and 5 (of FTP referral 56215) to the HCPC in a timely manner and to have failed to declare the convictions referred to in particulars 1 to 5 to his employer, the Trust. It is alleged by the HCPC that he has been dishonest in relation to these matters and that he is guilty of misconduct. Particular 1 of referral FTP 72697 refers to a further criminal conviction of 8 July 2019.

22. The HCPC alleges that the Registrant’s fitness to practise is impaired by reason of his criminal convictions and by reason of his misconduct.

The HCPC’s evidence

23. The following is a brief summary of the evidence of the HCPC’s witnesses relating to the allegations.

Colleague F

24. Colleague F confirmed her witness statement dated 29 January 2021. She told the Panel that she had worked at the Trust as Chief Biomedical Scientist at Newham Hospital. From 2014 she was the Registrant’s line manager until 2017, when she was absent for a period. Colleague A then acted as his line manager from January 2017. Colleague F confirmed that she had had no concerns about the Registrant’s work performance or work levels and he worked well.

25. Colleague F confirmed that she had interviewed the Registrant for his role and that at that time he had been transparent and had disclosed convictions he had previously received from 1990 and 2001 on the Trust’s declaration form dated 2 April 2015. Colleague F confirmed that the Registrant had not discussed any later convictions with her.

26. Colleague F indicated she had involvement in certain health issues relating to the Registrant in September 2017.

27. Colleague F confirmed that up to September 2017 she was in regular contact with the Registrant as he had been on sick leave and HR had advised she should undertake a weekly catch-up by telephone. As part of the process, the Registrant had submitted sickness certificates and referred to one such form which covered the period 12 October 2017 to 23 November 2017.

28. Colleague F stated that she had also had contact with the Registrant’s ex-partner during the period of his sickness. She confirmed that on 9 November 2017 she had a call from the Registrant’s ex-partner stating that the ex-partner had learned that the Registrant had been in prison following being sentenced for a drink driving offence. The ex-partner thought that he had been sentenced in the Cardiff area and that the prison was in that area and that he had been released on 3 November 2017. Colleague F confirmed that the Registrant had not informed her that he had gone into custody or that he was subject to criminal proceedings. She informed the HR department that she was in possession of a sickness certificate for the Registrant but was now aware that he was incarcerated in prison.

29. In cross-examination by the Registrant, Colleague F confirmed that the fact that he had not informed her of his convictions did not have any detrimental effect on his performance as a Biomedical Scientist in his work.

30. Colleague F thought that the Registrant had returned to work before Christmas 2017, but accepted from the Registrant that it may have been in January 2018.

31. In response to questions from the Panel, Colleague F confirmed that she would expect an employee to inform the Trust of criminal convictions and this was a general obligation on employees of which she would expect that all employees would be aware. The Trust would need to have such information in order to decide how to proceed in the circumstances. She said that, had she been made aware of the Registrant’s convictions, as she had not dealt with such a situation before, she would have referred to HR and sought their advice.

Colleague B (evidence given by video link)

32. Colleague B confirmed his witness statement dated 1 February 2021. He told the Panel that at the relevant time, from February 2016 to August 2019, he was employed as Divisional Manager of Blood Sciences at the Trust. Colleague B stated that he was the manager two levels above the Registrant’s line manager, Colleague F. He had never worked with the Registrant who was deployed at a different hospital.

33. Colleague B said that the Registrant had not told him about any convictions, but said that as he was not the Registrant’s line manager and as he worked at a different hospital site it was unlikely he would have known. No-one else informed him.

34. Colleague B referred to the Trust’s Disclosure and Barring Service Policy, of which he said the Registrant should have been aware. This specifically required that an employee would have “an obligation to inform [his] line manager immediately or a member of the management team if at any time whilst employed by the trust he is convicted of a criminal offence. A failure to do so could lead to disciplinary action being taken”. It continued “…during employment the failure to declare any conviction is considered an attempt to defraud the Trust and is a potential breach of contract”.

35. Colleague B could not confirm when the Registrant was given a copy of the policy. However, he stated it applied to all employees.

36. Colleague B stated that he was not aware of how and when the Trust first became aware of the Registrant’s convictions. He referred to an e-mail from the HCPC dated 26 May 2017 stating that the HCPC was aware that the Registrant had been convicted in June 2016 for a drink driving offence and had received a fine in January 2017 for damage to property. Colleague B confirmed in an e-mail response to the HCPC dated 15 June 2017 that managers at the Trust had not been aware of these matters and therefore no steps had been taken. Colleague B said that this was the first time he was made aware of any convictions concerning the Registrant.

37. Colleague B’s email of 15 June 2017 further confirmed that as a result of fitness to practise concerns, the Registrant was suspended by the Trust on 18 May 2017. Colleague B confirmed that following his e-mail of 5 June 2017 he had no further involvement with the Registrant’s case.

Colleague A

38. Colleague A confirmed the content of her witness statement dated 26 April 2021. She told the Panel that at the relevant time she was Chief Biomedical Scientist at the Trust. Colleague A said she did not work frequently with the Registrant as she worked on day shifts and he worked on nights. She said that the Registrant’s role involved running patient specimens, looking after equipment, providing support to service users of clinical biochemistry at any hospital within the Trust.

39. Colleague A confirmed that she was involved in the interview process when the Registrant joined the Trust and that he was transparent in disclosing his previous convictions at that time.

40. Colleague A confirmed that she was the Registrant’s line manager from 31 January 2017 until July 2017, whilst Colleague F was absent. After that time Colleague F resumed her role as line manager and Colleague A was no longer involved.

41. Colleague A confirmed that she had had no concerns about the Registrant’s work performance in his role.

42. Colleague A said that she was aware that the Trust undertook an investigation when it became aware of the HCPC’s investigation and the Registrant was suspended by the Trust on 12 May 2017.

43. Colleague A confirmed that the Registrant never reported his further convictions to her. She referred to the Trust’s Disclosure and Barring Policy and confirmed her understanding that all employees had a responsibility to inform the Trust of convictions they received.

44. Colleague A stated that she was aware that after his suspension was lifted the Registrant was under medical care and provided sickness certificates. She could not recall the dates and details. She said she was not privy to the details of the Trust’s investigation regarding the Registrant’s criminal convictions as she was no longer his line manager at that time.

45. In cross-examination by the Registrant, Colleague A confirmed that the non-disclosure of his convictions had no impact on his performance at work.

46. In answer to questions from the Panel, Colleague A stated that while she was the Registrant’s line manager she was the person he should have informed of any convictions he received. If she had been absent, it could have been another of the managers.

Jenna Oppong, HCPC Case Manager

47. This witness was not called by the HCPC to give oral evidence and Mr Smart sought to introduce her signed witness statement, dated 6 January 2021, as hearsay evidence. The Registrant initially indicated that he objected to the introduction of this evidence. Mr Smart made an application to admit hearsay evidence. He submitted that this witness’ evidence related to particular 7, which had been admitted by the Registrant, and it was evidence which was essentially factual and uncontentious. After further discussions, it was determined that a redacted version of Ms Oppong’s statement would be prepared, omitting certain parts of the statement upon which Mr Smart did not seek to rely and which did not relate to particular 7. The Registrant then confirmed he did not object to the introduction of the redacted form of Ms Oppong’s statement. As the issue was resolved by agreement, the Panel was not required to determine Mr Smart’s application. The redacted witness statement of Ms Oppong was admitted and read into the record.

48. In her signed witness statement Ms Jenna Oppong stated that she is a case manager in the HCPC Fitness to Practise department. She stated that the convictions in Referral 1 first came to the HCPC’s attention by an e-mail sent by the Registrant on 30 January 2017. In the e-mail the Registrant informed the HCPC that he had been convicted of an offence of criminal damage the previous week and had received a fine. This related to the conviction at Maidstone Magistrates Court on 25 January 2017 for the offence of criminal damage.

49. In the same e-mail the Registrant stated that he had been found guilty of an offence of drink driving in the previous year and had received a three-year suspension from driving. This related to his conviction at Sevenoaks Magistrates Court on the 14th of June 2016. Ms Oppong stated that the lack of detail provided by the Registrant meant that his details could not be verified by the HCPC nor any action taken in relation to his e-mail of 30 January 2017.

50. In respect of Referral 2, Ms Oppong stated that whilst the HCPC was investigating Referral 1 it came to the attention of the HCPC that the Registrant was in custody. She referred to an attendance note created by Louisa Simpson, Case Manager, following an incoming telephone call from a person believed to be the Registrant’s case worker in the Offender Management Unit. This was the first time the HCPC was aware that the Registrant was in custody.

51. After further investigation, the HCPC learned that the Registrant was on remand whilst awaiting the fixing of a date for a trial at Maidstone Crown Court.

52. Ms Oppong stated that the Registrant had disclosed the conviction in particular 1, dated 14 June 2016, in his e-mail of 13 January 2017. This was not disclosed to the HCPC for approximately 7 ½ months and therefore not in a timely manner. The conviction dated 25 January 2017, particular 2, was disclosed to the HCPC in a timely manner.

53. The first time when the HCPC was informed of the convictions referred to in particulars 3, 4 and 5 was in the Registrant’s e-mail of 4 April 2018 which attached a list of all five convictions referred to in particulars 1 to 5 of the allegation. The Registrant’s disclosure in this email in relation to particulars 3, 4 and 5, convictions from April, July and September 2017, was not considered to be in a timely manner.

54. In her witness statement Ms Oppong included a table setting out details of the certificates of conviction referred to in the particulars of the allegation and of the offences for which the Registrant was convicted.

55. Ms Oppong referred to the paragraph 9.5 of the HCPC Standards of Conduct Performance and Ethics which states:

“You must tell us as soon as possible if:
- you accept a caution from the police or you have been charged with, or found guilty of, a criminal offence….”

56. Ms Oppong explained that what constitutes “a timely manner” is not defined in HCPC guidance, but the approach the HCPC consistently adopts is that it should be within the timeframe of “eight weeks to two months”.

57. In summary, Ms Oppong’s evidence was that the convictions in particulars 1, 3, 4 and 5 were disclosed by the Registrant to the HCPC, but that this was not done in a timely manner.

Particulars 4(a), 4(b) and 8

58. The HCPC offered no evidence in respect of these particulars.

The Registrant’s evidence

59. The Registrant gave evidence on oath. The following is a brief summary of his evidence.

60. The Registrant told the Panel that he accepted the conviction matters and could not dispute them, but he would explain the circumstances at the appropriate stage of the process. He said that he would respond to particulars 9 and 10, which he disputed.

61. The Registrant said that he was off on sick leave

62. The Registrant said that whilst he was incarcerated in HMP Cardiff and away from work, he was simultaneously off sick. He said that Colleague F advised him that there was no way he would be allowed back to work after a month and this was how he ended up being away for six months. He said that officially, he had understood that he was on sick leave.

63. The Registrant told the Panel that this was really not a good period of time for him. Informing his employer had not been his first priority because of the health-related situation he was in. It was not at the forefront of his mind and he did not deliberately withhold the information. He said that he was in fact sick although he was also incarcerated for some of the time.

64. In response to particular 10, the Registrant told the Panel that he did not believe he had told an untruth or been dishonest to the HCPC or his employer. He said that although he did not understand the law, in his view, not doing something was not the same as telling an untruth. He said that the law was not about truth in his experience. He believed what was going on in his life at that time was relevant.

65. The Registrant went on to talk about the circumstances of the convictions in FTP referral 72697 relating to particulars 1(a), (b) and (c). A restraining order had been imposed on him but this was wrong. In his view the restraining order should never have been imposed. There had been no acts of violence involved.

66. In cross-examination by Mr. Smart the Registrant was asked why he thought the non-disclosure of the convictions to his employer was not dishonest. The Registrant said that his life had been in turmoil. The only good thing in his life had been work. When he was at work he knew what he had to do and could block everything else out. When he finished work each morning at 08.00 he would go from there straight to the off-licence and then to the next off-licence.

67. The Registrant said he had never been found to have done anything dishonest at work, as Colleagues A and B had acknowledged. They had confirmed that the non-disclosure of the convictions did not prevent him functioning in his role as a biomedical scientist.

68. When asked if he accepted he had had a responsibility to disclose his convictions, the Registrant said that he did. However, he had not set out deliberately not to tell the employer or the HCPC, but he was preoccupied with other things. The Registrant was asked if he accepted that, objectively, a person who has a responsibility to make disclosure and does not is dishonest? The Registrant replied that from a legal standpoint he thought it would be, but in his experience of the courts it was more important to convict than to listen to your truth. He thought that most people would probably say that it was not dishonest.

69. The Registrant acknowledged that when he was recruited by the Trust he had disclosed his earlier convictions.

70. The Registrant was referred to the Trust's Disclosure and Barring Policy. The Registrant accepted that it was in place but said that whether he ever laid eyes on it was another thing. He said he did not think people read these types of documents. If the document had been given to him in a bundle of papers then no, he would not have a read it. The Registrant said he accepted what the policy said but could not say whether he had seen it.

71. When asked if he had been aware of a condition in his employment contract, the Registrant said that he would not have read his contract. He did not think he had ever read a contract in his life. He was concerned with being paid and holidays.

72. When asked if it was his evidence that he was not aware that he had to disclose convictions, the Registrant responded that he would have been aware that he was supposed to, but the Panel had to understand his situation at the time and the circumstances of his life meant that he did not do it.

73. The Registrant was asked about the HCPC’s and Standards of Conduct, Performance and Ethics and the requirement to tell the HCPC when a conviction was received as soon as possible. The Registrant responded that he was generally aware but referred back to his previous answers. When asked if he accepted that he did not disclose the convictions in a timely manner the Registrant said that it was necessary to understand the things happened to him and he had tried his hardest to forget about them. He said things had just happened to him, whether deliberately or accidentally. He felt that he had tried to move on from things, but for some reason he was never allowed to. He felt that the situation he found himself in in relation to the convictions had negated his 15 years of professional experience.

74. The Registrant agreed that he did disclose the conviction of 25 January 2017 (particular 2).

75. When asked why he later did inform the HCPC of all the convictions, the Registrant told the Panel that one side of his head was telling him not to disclose the convictions and the other side was saying “yes, do it”. He said that his then partner, told him “Just do it”. He said that he was not going to do it because he thought “they’ll screw you over”.

76. Mr Smart asked the Registrant if his motive for not disclosing the convictions was that he was worried about losing his job and being “screwed over”. The Registrant replied that it had been, and also was due to his health issues at the time. He said that Colleague F had been a good manager because she appreciated his ability to do his job had not been affected.

77. It was put to the Registrant in relation to particular 9 that he was in fact in prison when he had said that he was off sick. The Registrant said yes, but this did not change the fact that he was off sick.

78. The Registrant said that the Trust had pursued him for fraud but subsequently the Trust had been contacted by his solicitor, with an accurate account of the dates of his incarceration. He said that the Trust did not pursue the matter and repaid some of the pay it had previously repatriated.

79. In questions from the Panel, the Registrant was asked about the timeline when he was in prison. He said that he was in Prison for three weeks from 19 September 2017. He was referred to the notice from Cardiff Crown Court confirming the outcome of his appeal against the conviction which stated that his appeal was heard on the 3 November 2017 and this would be the date when he was released from custody following appeal of his sentence. The Registrant said the dates were incorrect.

80. The Registrant told the Panel that if he had received a sick note dated 18 October 2017 when he was out of prison he would have posted it to the Trust. He accepted that he would have sent the sick note, but did not actually recall seeing it or doing so.

81. In completing his evidence, the Registrant said things have happened to him which he could not change but he did not agree that he had been dishonest.

Submissions on facts
82. Mr Smart for the HCPC reminded the Panel of the burden and standard of proof. He submitted that the Panel could take account of the Registrant’s admissions to a number of the particulars, but should reach its own conclusions on the evidence.

83. Mr Smart reminded the Panel of the terms of Rule 10(1)(d) of the Rules which deals with criminal convictions and submitted that the convictions were proved by the copy certificates of conviction. They were admitted by the Registrant. Mr Smart further submitted that particulars 6, 7 and 9 were proved by the witness and documentary evidence called on behalf of the HCPC.

84. In relation to particular 10, Mr Smart submitted that the Registrant was dishonest towards the Trust and the HCPC in respect of the matters alleged in particulars 6, 7 and 9. He reminded the Panel of the obligation imposed on HCPC registrants by Standard 9.5 of the HCPC’s Standards of Conduct Performance and Ethics.

85. Mr Smart referred the Panel to the test in the case of Ivey v Genting Casinos (UK) Ltd. t/a Crockfords (Respondent) [2017] UKSC 67. He referred the Panel to the HCPTS Practice Note, Making a decision on a registrant’s state of mind. The Panel was required to decide whether it was more likely than not that the Registrant had behaved dishonestly. Mr Smart submitted that the first element of the Ivey test was established in relation to all three particulars, 6, 7 and 9. He submitted that the Registrant’s evidence is that he knew disclosing the convictions would have an adverse impact on his (the Registrant’s) employment and referred to the Registrant’s evidence when he said he was worried that he would be “screwed over”. It was clear in respect of the second element of the test that ordinary decent people would consider the Registrant’s actions to be dishonest.

86. Mr Smart submitted in conclusion that the Registrant had engaged in artifice in giving his account in evidence. His submission was that the Registrant was aware of his obligations to his employer, the Trust, and to the HCPC, but had chosen to ignore them because of fear of the consequences.

Submissions of the Registrant

87. The Registrant said that he accepted the convictions. He disputed the accusation that he had not disclosed information to his employer and the HCPC because of fear of losing his job: he emphasised that he had not been in a good place and work and the HCPC had been the least of his concerns.

88. The Registrant told the Panel that he does not cope well with stress.

89. The Registrant told the Panel that he enjoys his job and wants to work as he is able to dissociate himself from everything else in his life. He felt that the HCPC’s pursuit of these allegations prevented him from doing his work and the past matters had become all that he was about. He said the convictions related to issues in his personal life and he considered that he was not in a public role.

Panel decision on facts

90. The Panel considered the submissions of Mr Smart for the HCPC and those of the Registrant. It accepted the advice of the Legal Assessor. The Panel considered whether the facts were proved according to the civil standard of proof, that is the balance of probabilities. It proceeded on the basis that the burden of proving the facts rests upon the HCPC throughout and the Registrant is not required to prove his innocence.

91. The Panel was referred to the HCPTS Practice notes, Convictions, and Caution Allegations, and Making decisions on a Registrant’s state of mind.

92. The Panel took into account the admissions made by the Registrant (as set out above), but also gave its own careful consideration to the evidence presented by the HCPC and reached its own determinations.

FTP 56215
Particular 1

93. The Panel had sight of a copy of the Memorandum of Conviction from Sevenoaks Magistrates Court which confirmed that the Registrant was convicted of the offence on 14 June 2016 and was sentenced to pay a fine of £400 and disqualified from driving for 36 months. The Registrant pleaded guilty to the offence.

94. The Panel accepted the certificate as proof of the conviction and of the findings of fact upon which it was based, as provided for by Rule 10(1)(d) of the Rules.

95. The Panel also took account of the Registrant’s admission.

96. The Panel was satisfied that the facts of particular 1 were proved.

Particular 2

97. The Panel had sight of a copy of the Memorandum of Conviction from Maidstone Magistrates Court which confirmed that the Registrant was convicted of the offence on 25 January 2017 and was sentenced (in summary) to pay a fine of £250.00 and to pay compensation and costs.

98. The Panel noted that the Registrant pleaded guilty to the offences.

99. The Panel accepted this as proof of the conviction and of the findings of fact upon which it was based, as provided for by Rule 10(1)(d) of the Rules.

100. The Panel also took account of the Registrant’s admission.

101. The Panel was satisfied that the facts of particular 2 were proved.

Particular 3

102. The Panel had sight of a copy of the Memorandum of Conviction from Staines Magistrates Court, which confirmed that the Registrant was convicted of the offence on 4 April 2017 and sentenced to a Community Order, a requirement to carry out 120 hours unpaid work and to pay a victim surcharge. The Registrant pleaded guilty to the offence.

103. The Panel accepted this as proof of the conviction and of the findings of fact upon which it was based, as provided for by Rule 10(1)(d) of the Rules.

104. The Panel also took account of the Registrant’s admission.

105. The Panel was satisfied that the facts of particular 3 were proved.

Particular 4

106. The HCPC offered no evidence in respect of particulars 4(a) and 4(b) The Panel found them not proved.

107. In respect of particulars 4(c) and 4(d) the Panel had sight of a copy of the Memorandum of Conviction from Cardiff Magistrates Court which confirmed that the Registrant was convicted of the offence on 31 July 2017 and sentenced to a restraining order, a community order, and to pay compensation. The Registrant pleaded guilty to the offence

108. The Panel accepted this as proof of the conviction and of the findings of fact upon which it was based, as provided for by Rule 10(1)(d) of the Rules.

109. The Panel also took account of the Registrant’s admission.

110. The Panel was satisfied that the facts of particular 4(c)and (d) were proved.

Particular 5

111. The Panel had sight of a copy of the Memorandum of Conviction from Cardiff Magistrates Court which confirmed that the Registrant was convicted of the offence on 19 September 2017 and sentenced a custodial sentence totalling 4 months. The Registrant pleaded guilty to the offences.

112. The Panel accepted this as proof of the conviction and of the findings of fact upon which it was based, as provided for by Rule 10(1)(d) of the Rules.

113. The Panel had sight of documents indicating that this conviction was the subject of an appeal by the Registrant which was heard at Cardiff Crown Court on 3 November 2017. As a result of the appeal the conviction remained in place but the sentence was varied to 2 months’ imprisonment suspended for two years and a Rehabilitation Activity Requirement. The Panel had sight of the notice from Cardiff Crown Court dated 23 November 2017 confirming the outcome of the appeal.

114. The Panel also took account of the Registrant’s admission.

115. The Panel was satisfied that particular 5 was proved.

Particular 6

116. It was alleged that the Registrant did not disclose the convictions at particulars 1-5 to his employer, the Trust.

117. The Panel heard evidence from colleagues A, B and F, all of whom were managers at the Trust during the relevant period of time. The Panel found them all to be professional and credible witnesses who gave evidence under affirmation. None of the witnesses displayed any animosity towards the Registrant. Their evidence was clear that they, and the Trust as a whole, were not informed by the Registrant of these convictions. In the light of the evidence, and taking account of the Registrant’s admission, the Panel was satisfied on the balance of probabilities that this particular was proved.

Particular 7

118. It was alleged that the Registrant did not disclose the convictions at particulars 1, 3, 4 and 5 to the HCPC in a timely manner.

119. The Panel received in evidence the redacted witness statement of Jenna Oppong, Case Manager for the HCPC. The Panel was satisfied that this hearsay evidence was from an official, professional source and concerned matters of fact and record. The Panel was satisfied that it could be given significant weight.

120. Ms Oppong’s evidence was that the HCPC was not informed of these convictions in a timely manner. The Panel noted her evidence that the HCPC interprets this as being a period of approximately eight weeks to two months. The Panel noted that Standard 9.5 of the HCPC’s Standards of Conduct Performance and Ethics requires that the HCPC must be informed of criminal convictions by Registrants “as soon as possible”.

121. The Panel was satisfied that the Registrant having informed the HCPC of the conviction in particular 1 after 7.5 months, and of the further convictions after a considerably longer period, did not amount to doing so “in a timely manner” on either interpretation.

122. The Panel was of the view that an HCPC registrant has an obligation to ensure that they are aware of and comply with the HCPC’s Standards of Conduct, Performance and Ethics. The Panel considered it is widely known that the HCPC as the regulator must be kept informed of such matters, and informed promptly.

123. The Registrant had admitted this particular. In his evidence to the Panel, he accepted he was aware of the obligation to inform the HCPC promptly. The Panel further noted that his prompt notification to the HCPC of the conviction referred to in particular 2, within a matter of days, was a further indication that he was aware of the obligation of prompt disclosure.

124. The Panel was satisfied that particular 7 was proved on the balance of probabilities.

Particular 8

125. The HCPC offered no evidence on this particular. The Panel found it not proved.

Particular 9

126. This particular alleged: “You informed your employer that you were sick between 12 October 2017 and 23 November 2017, during which time you were in fact in prison”. The Panel noted that the dates in the charge were those referred to in a sickness certificate dated 18 October 2017 from the Registrant’s GP, referring to having assessed the Registrant on 12 October 2017. Colleague F had said in her evidence that she received the certificate through the post but did not know who had sent it as she did not recognise the writing on the envelope. It was S, the Registrant’s partner who contacted her on 9 November 2017 and informed her that the Registrant had been in custody.

127. The Registrant denied this particular. His account was that he was sick throughout this period although he was also incarcerated. He appeared not to have a detailed recollection. He said that he thought he “would have” obtained the sick note and sent it to the Trust, but did not expressly recall doing so.

128. The Panel saw documents from Cardiff Crown Court indicating that the Registrant’s appeal against his conviction of 19 September 2017 was heard on 3 November 2017 following which, as a result for the variation of his sentence, he was released from custody. The Registrant disputed that the court documents were correct and asserted that he had been released before this date, spending only “about three weeks” in custody. During its deliberations, the Panel was provided, at the request of the Registrant, with an email dated 9 August 2018, from his solicitor. This confirmed the dates of his incarceration at HMP Cardiff as from 10 October 2017 to 3 November 2017, following the hearing of his sentencing appeal, as indicated on the documentation from the Crown Court.

129. The Panel concluded that on the balance of probabilities, the Registrant was responsible for the submission of the sickness certificate to the Trust, since it related to him, and therefore for informing the Trust that he was sick during this period. The Panel was further satisfied that for some of the period referred to, he was in prison, albeit it appears that he was also sick during this period.

130. The Panel concluded that the facts as alleged in the particular were proved on the balance or probabilities.

Particular 10

131. Having found the found the facts alleged in particulars 6, 7 and 9 proved, the Panel next considered whether the Registrant’s actions in respect of those particulars were dishonest.

132. The Legal Assessor referred the Panel to the test for dishonesty as laid down by the Supreme Court in the case of Ivey v Genting Casinos (UK) Ltd. t/a Crockfords (Respondent) [2017] UKSC 67, in which it was stated that:
“When dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts. The reasonableness or otherwise of the belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to facts is established, the question of whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.”

133. The Panel applied the test from the Ivey case in relation to each of particulars 6, 7 and 9.

Particular 6

134. The Panel first considered the Registrant’s actual state of knowledge and belief as to the facts. It noted the evidence of the Trust witnesses referring to the obligation to inform the Trust of conviction matters set out in its Disclosure and Barring Policy and in the contract of employment. The Panel noted that the Registrant had disclosed earlier convictions from 1990 and 2001 on the Trust’s declaration form at the time when he commenced employment with the Trust in 2015 which indicated that he was aware of this obligation.

135. The Registrant had accepted this particular and accepted in oral evidence that he was aware that he should have informed the Trust. However, he told the Panel that he would not have read employment policies provided by the Trust, nor would he have read his contract. The Panel concluded that he was aware he was under a duty to tell his employer about criminal convictions.

136. The Registrant’s evidence to the Panel in response to the dishonesty allegation was that telling his employer about his convictions was not at the forefront of his mind at the relevant times, due to his being unwell with depression and due to his high level of alcohol consumption. The Panel concluded this may be evidence relevant to mitigation, should that stage be reached. However, the Panel noted that throughout the time periods following the convictions the Registrant had continued to attend his workplace and carry out his day-to-day duties. During his evidence and submissions to the Panel he repeatedly assured the Panel that his convictions had not affected his ability to carry out his professional duties. The evidence of Colleagues B and F, his managers, to which the Registrant also referred, was that they had had no concerns about his professional performance at work. The Panel was not satisfied that the Registrant’s health or personal issues inhibited his ability properly to inform his employer.

137. The Panel also took account of the Registrant’s account at other points in his evidence that suggested that he took a conscious and deliberate decision not to inform the Trust because of fear of the consequences. He said that when his former partner told him to “just do it”, part of him knew that he should and the other part did not want to do so because he said he knew he would be “screwed over”. The Panel found the Registrant’s explanations as to why he did not disclose his convictions to be inconsistent, but it concluded he was aware of the obligation and had made a conscious decision not to inform the Trust.

138. In relation to the second limb of the Ivey test, the Panel was satisfied that ordinary decent people would consider the Registrant’s actions to be dishonest. The Registrant stated in his evidence that he believed that whilst the law might consider his actions to be dishonest, ordinary members of the public would not. The Panel disagreed with this view.

Particular 7

139. The Registrant admitted this particular. He accepted in his oral evidence to the Panel that he was aware that he should inform the HCPC of his convictions. The Panel noted that he did inform the HCPC promptly of the conviction referred to in particular 2, which also suggested that he was aware of the obligation.

140. The Panel was further mindful that HCPC registrants must be aware of and comply with the HCPC’s Standards of Conduct, Performance and Ethics. It was satisfied that the requirements for a registrant to inform the HCPC, as his/her regulator, of important matters concerning criminal convictions ‘as soon as possible’ are well known. The Panel concluded that it was a matter of common sense that the Registrant would be aware that his professional regulator would need to be informed promptly of matters of such a serious nature. The Panel was satisfied on the balance of probabilities that the Registrant was aware of this obligation and not to comply with it was dishonest.

141. The Registrant’s explanation in his defence was similar to that he gave in respect of particular 6. Again, the Panel concluded from parts of his evidence that not informing the HCPC was a deliberate decision, motivated by self-interest.

142. In relation to the second limb of the Ivey test, the Panel was satisfied that ordinary decent people would consider the Registrant’s actions to be dishonest. The Registrant stated in his evidence that he believed that whilst the law might consider his actions to be dishonest, ordinary members of the public would not. The Panel disagreed.
Particular 9

143. The Panel considered the terms of the allegation and the evidence. The Panel noted that the particular did not allege that the Registrant had wrongfully claimed sick pay for a period when he was in prison, only that he did not inform his employer that he was sick when he was in fact in prison. Although the Panel had found that the Registrant was under an obligation to inform his employer of his convictions, no reference to an obligation simply to tell the Trust that he was in prison had been drawn to the Panel’s attention in the HCPC’s case. The Panel found the evidence inconclusive and unclear. The Panel concluded from all the evidence that during this period the Registrant was sick and that he was also, for some of this period, in prison. The Panel was not satisfied by the HCPC’s evidence that, on the balance of probabilities, applying the Ivey test, the Registrant had been dishonest.

144. The Panel’s conclusion in respect of particular 10 was that dishonesty was proved in respect of particulars 6 and 7. It was not proved in respect of particular 9.
FTP Referral 72697 - Particular 1

145. The Panel had sight of a copy of the Certificate of Conviction from Maidstone Crown Court which confirmed that the Registrant was convicted of the offence on 8 July 2019 at North Kent Magistrates Court and sentenced at the Crown Court to 4 months’ imprisonment, a Restraining Order for 7 years and an order relating to forfeiture and destruction of drugs.

146. It was not indicated on the Certificate whether the Registrant pleaded guilty to the offences.

147. The Panel accepted the certificate as proof of the conviction and of the findings of fact upon which it was based, as provided for by Rule 10(1)(d) of the Rules.

148. The Panel also took account of the Registrant’s admission.

149. The Panel was satisfied that the facts of this particular were proved.

 

No information currently available

This hearing adjourned, part heard. The date for the reconvened hearing is to be confirmed.

History of Hearings for John Junior Shakes

Date	Panel	Hearing type	Outcomes / Status
16/11/2022	Conduct and Competence Committee	Final Hearing	Struck off
04/07/2022	Conduct and Competence Committee	Final Hearing	Adjourned part heard