Andrew Martindale

Preliminary matters

Conduct of the Hearing in Private

1. Ms McCullough applied for the entire hearing to be conducted in private … Mr Foxsmith opposed the application. The Panel received advice from the Legal Assessor, which it accepted.

2. The Panel is not hearing the health allegation, though it was clear from Ms McCullough’s submissions that she would be relying on health matters for the purposes of this hearing. Rule 10(1)(a) of the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 as amended (‘the 2003 Rules’) provides that, -

‘the proceedings shall be held in public unless the Committee is satisfied that, in the interests of justice or for the protection of the private life of the registrant, the complainant, any person giving evidence or of any patient or client, the public should be excluded from all or part of the hearing.’

The HCPTS’s Practice Note, Conducting Hearings in Private, 22 March 2017 states that ‘a compelling reason’ must be shown to conduct a hearing in private. Following an intervention from the Panel Chair, Ms McCullough did ask that the matters relating to the Registrant’s health in particular be heard in private in any event.

3. This case concerns the implications of an alleged criminal conviction for the Registrant’s fitness to practise, and so relates to matters of genuine public interest for the registered profession. The Panel did not accept that the matters relied on constituted a sufficient reason to conduct the entire hearing in private. The hearing could be conducted with due sensitivity to the Registrant’s concerns, Mr Foxsmith having indicated that his submissions would be brief and that he would be referring to page numbers in the hearing bundle, with brief reference to the nature and content of the documents so far as relied on.

4. In those circumstances, the Panel decided to grant the application to conduct the hearing in private solely in respect of matters that concerned the Registrant’s health. It rejected the application to conduct the entire hearing in private.
Amendment

5. Mr Foxsmith applied to amend paragraph 1 of the Allegation by deleting the words ‘Sexual Offences Act’ and substituting ‘1(1)(a), Protection of Children Act 1978’, to identify accurately the criminal offence relevant to the conviction relied on by the HCPC. Ms McCullough accepted that the amendment would be appropriate. The Panel received advice from the Legal Assessor, which it accepted.

6. The amendment reflected the copy of the indictment in the documents placed before the Panel. There would be no injustice to the Registrant in allowing the amendment, and the Panel therefore granted the application.

The Panel’s Decision-making and its Rule 4 Power

7. As indicated, the jurisdiction of the Panel, as a panel of the Conduct and Competence Committee, is to determine those parts of the Allegation that concern impairment of fitness to practise by reason of alleged conviction for a criminal offence. Its role is not to determine the Allegation insofar as it relates to a health condition. That would be a matter for the Health Committee.

8. Therefore, the Panel is called on to decide the following Particulars of the Allegation, namely Particular 1, and Particular 3 limited to, ‘By reason of your conviction …, your fitness to practise is impaired’.

9. The Panel considered the following issues at the first stage of the hearing, namely facts, statutory ground and current impairment. If the Panel were to find that the Registrant’s fitness to practise is currently impaired, it would go on to consider the issue of what, if any, sanction might be appropriate.

10. The Panel has also kept in mind its power to transfer the case to the Health Committee in view of its powers under rule 4 of the 2003 Rules. In doing so, it has also had regard to the principles set out in the case law referred to in the HCPTS’s Practice Note, Health Concerns, February 2022. In summary, as the sanction of suspension is the severest sanction available to the Health Committee, the case should not be transferred to it if, and for so long as, a Striking Off Order is a serious possibility: see Crabbie v GMC [2002] UKPC 45.

Background

11. This case arises from a written referral dated 6 June 2018 made on behalf of the Isle of Wight NHS Trust. The referral reported that the Trust had been contacted by the Police on 21 May 2018 in connection with conversations the Registrant had been having with an adult female at the beginning of May 2018 and that he had been arrested. The referral informed the HCPC that the Registrant had been suspended from his role as a Paramedic on 22 May 2018.

12. On 6 January 2022 a panel of the HCPC’s Investigating Committee decided that there was a case to answer in relation to a dual allegation of impairment on grounds of conviction and health. The Registrant was notified of that decision by letter dated 10 January 2022. The case was referred to the Conduct and Competence Committee.

Admissions, Submissions and Legal Advice

13. On behalf of the Registrant, Ms McCullough admitted Particular 1 of the Allegation and also admitted that the Registrant’s fitness to practise is impaired by reason of the conviction. Mr Foxsmith made submissions in support of the HCPC’s case. Ms McCullough provided further information to the Panel, which included the Registrant’s remorse concerning the conduct that underpinned his conviction… The Registrant did not give evidence, though Ms McCullough read out a statement prepared by him for the Panel’s consideration. The Panel received advice from the Legal Assessor, which it has accepted.

Decision on Facts

14. The HCPC bears the burden of establishing its factual case to the standard of the balance of probabilities. A certified copy of a Certificate of Conviction is admissible evidence of a conviction and the findings of fact on which it was based (Rule 10(1)(d) of the 2003 Rules).

15. The Panel has seen a certified copy of the Certificate of Conviction dated 2 January 2022 provided on behalf of the Crown Court, Newport, Isle of Wight. The certificate states that on 14 June 2021 the Registrant was convicted on indictment at that Crown Court upon his own confession as follows, ‘Make indecent photograph/pseudo-photograph of a child.’ The copy of the indictment showed that the conviction was under section 1(1)(a), Protection of Children Act 1978.

16. In those circumstances and in view of the admission as to Particular 1 made by Ms McCullough for the Registrant, the Panel was satisfied that the HCPC has established the facts set out in Particular 1 of the Allegation.

Decision on Grounds

17. The Panel is called on to decide whether or not the facts proved relate to a conviction in the United Kingdom for a criminal offence (Art. 22(1)(a)(iii), Health Professions Order 2001, as amended). The conviction under s1(1)(a), Protection of Children Act 1978 related to what is, as a matter of law, a criminal offence and the conviction was in the United Kingdom. Therefore, the statutory ground of conviction for a criminal offence has been established.

Decision on Impairment

18. The HCPTS Practice Note “Conviction and Caution Allegations”, 22 March 2017, shows that the purpose of fitness to practise proceedings arising from a criminal conviction is not to punish a registrant twice. Their purpose is to protect the public who may come to the Registrant as service users and to maintain the high standards and good reputation of the profession. The Panel is to consider public protection in its broadest sense, including whether the Registrant’s actions bring the profession into disrepute, may undermine public confidence in it, or both. In deciding these matters, the Panel is to consider the nature, circumstances, and gravity of the conviction in the context of registered practice. The Panel has also considered both the personal and public components of impairment, as set out in the HCPTS’ Practice Note entitled “Fitness to Practise Impairment”, February 2022.

19. The Panel acknowledged that the Registrant had pleaded guilty to the offence and that he is “riddled with remorse” as stated by Ms McCullough on his behalf to the Panel. The Panel took into account all the matters placed before it by Ms McCullough… It took account of the matters in the Registrant’s statement read to it by Ms McCullough. However, the Panel was not satisfied that the Registrant had demonstrated substantial insight into his conduct that underlay the conviction.

20. The Particulars of the offence set out in the indictment showed that the offence related to three ‘Category 3’ images of a child between 27 March 2015 and 21 May 2018. The conviction concerned those images of young children held on the Registrant’s laptop computer and mobile phone.

21. On 27 July 2021, the Crown Court at Newport, Isle of Wight passed a sentence in respect of the conviction which included (among other matters) a Community Order of 2 years with a requirement of 30 days of rehabilitation activity, and a Sexual Harm Prevention Order of 5 years. The court assessed the degree of risk as requiring the imposition of that order, which placed restrictions on the Registrant’s use of the internet and ownership and use of devices capable of accessing the internet or storing images, with ancillary restrictions and requirements.

22. In all the circumstances, the Panel concluded that the Registrant’s insight and remediation are limited and that there remains a risk of repetition of the offending conduct.

23. The Panel considered that members of the public would likely be seriously concerned if, notwithstanding the criminal conviction and the sentence that was passed for it, the Registrant were now to be found fit to practise as a Paramedic. That is particularly so as the Community Order of two years remains in place until 26 July 2023.

24. The Panel has concluded that the nature and gravity of the criminal offence in the context of registered practice are such that the Registrant has brought the profession into disrepute.

25. The Panel reminded itself of the Registrant’s guilty plea and all other considerations in his favour, as well as the admission made on his behalf that his fitness to practise is impaired by reason of the conviction.

26. In view of the need to uphold proper professional standards and to maintain public confidence in the profession, the Panel concluded that a finding of impaired fitness to practise is required in the circumstances of this case.

27. In the circumstances, the Panel has concluded that the Registrant’s fitness to practise is currently impaired.

Decision on Sanction

28. No oral evidence was given at this stage. A further bundle of documents relevant to sanction was relied on by the HCPC. These documents provided context to the conviction, which had come about as a result of online text and ‘chat’ communications between the Registrant and an undercover law enforcement officer that included references to sexual activity with minors.

29. Mr Foxsmith referred to the purpose of sanctions and to particular parts of the HCPTS’s Sanctions Policy, March 2019 (‘SP’). He invited the Panel to consider each available sanction in ascending order of seriousness. He pointed to a number of what he submitted were aggravating factors as well as those in mitigation. He made clear that he was not advocating any particular sanction, though he did suggest that the Panel may consider that a sanction in the higher range to be appropriate.

30. Ms McCullough referred to the mitigating factors in favour of the Registrant. These, she submitted, included his guilty plea, the fact that the conviction concerned conduct that was limited in time, and the Registrant’s four years of reflection on what she described as a catastrophic loss of judgment. Although his conviction was very serious, there had been no attempt to meet up with any child after the exchanges of text and chat messages with the undercover officer.

31. Ms McCullough further submitted that the images had been received by the Registrant as part of online conversations and were in the least severe grade of images and that two of the three appeared to be duplicates. She referred to the shame felt by the Registrant … He had fully co-operated when interviewed by the Police and had engaged with this regulatory process. The Registrant’s position was that the chances of his repeating the conduct were ‘zero’. However, he expected that the most severe sanction would be imposed on him by the Panel.

32. Mr Foxsmith confirmed that the Registrant had a previously clear fitness to practise record. The Hearings Officer informed the Panel that an Interim Suspension Order has been in place on the Registrant’s registration since 14 August 2020.

33. The Panel has taken into account the relevant parts of the SP in reaching its decision, its earlier findings and conclusions, and all the evidence so far as relevant at this stage. The Panel has also taken into account all the submissions of Mr Foxsmith and of Ms McCullough. The Panel has accepted the advice given by the Legal Assessor.

34. The Panel is required to give effect to the statutory Overarching Objective. That objective includes the protection, promotion and maintenance of the health, safety and well-being of the public; promotion and maintenance of public confidence in the profession and of proper professional standards and conduct for members of the profession. Sanctions are not intended to punish registrants, but instead to ensure that the public is protected. Inevitably, a sanction may be punitive in effect, but should not be imposed simply for that purpose. In deciding what, if any, sanction to impose, a panel is required to apply the principle of proportionality.

35. The reputation of the profession as a whole is more important than the interests of any individual practitioner; and, because orders made by professional disciplinary tribunals are not primarily punitive, considerations which would ordinarily weigh in mitigation of punishment have less effect on the exercise of this jurisdiction than on the ordinary run of sentences imposed in criminal cases: see the judgment of Sir Thomas Bingham MR in Bolton v Law Society [1994] 1 WLR 512, at pages 518 and 519.

36. In making its overall assessment of the seriousness of the Registrant’s conduct, the Panel had regard to paragraph 85 of the SP, which states -

‘Any offence relating to indecent images of children involves some degree of exploitation of a child, and so a conviction for such an offence is a very serious matter. In particular, it undermines the public’s trust in registrants and public confidence in the profession concerned and is likely to lead to a more serious sanction.’

37. The Panel has reminded itself of the nature and circumstances of the offence, as summarised in the transcript of the sentencing proceedings before Mr Recorder Paul Garlick QC, the sentencing judge. In opening those proceedings, prosecuting counsel stated, -

“.. Your Honour will recall that the matter was listed for trial, but there was the four count indictment which had, I think, four counts alleging attempting to arrange a sexual activity with a child. And the Defendant, on 14 June, .. offered to plead guilty to the fourth count on the indictment, which was the possession of the indecent images of children. The Crown were happy to accept that plea as being in the public interest not to proceed with the other matters in .. view of all of the circumstances of this case, and I think at that time I asked that those matters, in due course, would be left to lie on the file in the normal manner. …………

So the sentence today is for a single count of possessing indecent images of children. The background, however, involving … counts 1 to 3 is of some significance, because it is that act which .. gives rise to the finding of the indecent images. And it’s also my submission, of some relevance to the risks that need to be managed in this case, for the future.

So what’s happened was that in May … 18, the Defendant had sent a message to a person that turns out to be an undercover police officer. That undercover police officer purports to be .. a woman with .. a child, a female child of age 13. As it happens .. the police officer was a male police officer.

In any event .. the two, that is the Defendant and the police officer engage in, what I would describe as highly sexualised chat, and that involves discussion of acts that they or one of them would do to the 13 year old girl who, of course, does not in fact exist. And it ends with the Defendant certainly expressing a wish that he should travel to visit .. the fictitious child for the purpose of sexual activity. So, that is just background to this case.

What happens then is because the, the police carried out this undercover work, ascertained that the Defendant is a health care worker, they immediately stop the operation and report matters to the local police, and that is what they did.

So on 20 May, DC Timmis attends the Defendant’s home address, which is in Newport, arrests him, and seizes various items of electronic equipment. I mean two computers, I think it is, and two telephones. One of the telephones, the Defendant says is his personal telephone, and on that is found to be a single indecent image of a child. And on a laptop that was seized, I think two, two such images were found. All those images are Category 3 images. The image on the telephone, it was attached to a message which had been received by the Defendant from a contact called horribleplum3, and within a minute of its receipt, the telephone that the Defendant says was his, returned a message saying:

“Mmm, very nice, you like late teens.”

The images on the computer were deemed to have been most likely taken from the internet. In interview the Defendant said, there would be no such images on his computer.

…. the Defendant was a man of 59 years of age. He, he had no convictions prior to entering the guilty plea on 14 June. In terms of the guidelines, there are in this case, only three images. They are all Category 3 images, and it’s alleged that they were simple possession. The .. starting point for that in the guidelines is a high level Community Order, and the range is a medium level Community Order to 26 weeks in custody. There is no suggestion of any aggravating factors in this case at all. ….”

The Judge stated, -

“…. I have read .. the Pre-sentence Report with great care. And having seen the Defendant on the previous occasion, having read the opening note Mr Blain prepared for that hearing, and his opening today, I’m minded to implement the recommendation in the Pre-Sentence Report and impose a 2 year Community Order with 30 hours of, 30 days, I’m sorry, of rehabilitation activity requirement. And in those circumstances, would you want to make any further submissions to me?”

In response, counsel for Mr Martindale (Ms McCullough) stated, -

“… because we are an open court and others may be listening in, the interest – [w]ith … the matters that have not been proceeded with was, was very much in [sic] the lady that he thought he was dealing with, not so much the daughter. I just want to make that clear, …”

The Judge proceeded to announce the sentence and made no other material sentencing remarks.

38. In committing a criminal offence by possessing indecent images of children, the Registrant has brought the profession into disrepute (see paragraph 24 above). The Registrant’s conduct underlying the conviction occurred in the sphere of his private life. However, that conduct amounted to a failure to comply with a fundamental tenet of registered practice as set out in paragraph 9.1 of the HCPC’s Standards of conduct, performance and ethics (26 January 2016) –

‘You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.’

39. The Panel considered the mitigating and aggravating factors. The mitigating factors for the purposes of these fitness to practise proceedings included the following. The Registrant did plead guilty to the offence and is genuinely remorseful. There has been no repetition of the conduct underlying the conviction and no previous conviction in respect of any such conduct. The have been no previous fitness to practise concerns…There are positive testimonials in his favour.

40. The Panel considered the following to be the aggravating factors in this case. The offending conduct underlying the conviction was sexual in nature and concerned children. Possession of indecent images (of whatever grade) is a matter that is exploitative of children to a significant degree. The circumstances surrounding the conviction, as recorded in the transcript of the sentencing proceedings and the text messages and ‘chat’ exchanges with respect to children, were very troubling.

41. The Panel considered the available outcomes in ascending order of seriousness.

42. To take no action would be a wholly inappropriate response to the impairment in view of the seriousness of the conviction.

43. The Panel considered whether or not a Caution Order would be appropriate. The Panel has concluded that a caution would not address the gravity of the conviction in the context of registered practice. A Caution Order would not be sufficient either to maintain public confidence in the profession and its regulation or to uphold standards among members of the profession, providing a sufficient deterrent to other registrants. The conviction does not concern an issue that ‘is relatively minor in nature’: see paragraph 101 of the SP.

44. The Panel next considered whether a Conditions of Practice Order would be appropriate. It noted that the terms of the Sexual Harm Prevention Order might provide a basis for formulating workable conditions of practice. However, paragraph 108 of the SP states that conditions are less likely to be appropriate in more serious cases, which are expressed to include indecent images of children. A Conditions of Practice Order would once again not reflect the gravity of the conviction in the context of registered practice, including the extent to which the Registrant has failed to justify the public’s confidence in him or in the profession.

45. The Panel next considered whether a Suspension Order would be a sufficient sanction. In doing so, it considered the matters set out in the SP with respect to both a Suspension Order and a Striking Off Order, and balancing all the relevant considerations so as to give effect to the Overarching Objective.

46. Paragraph 121 of the SP states, -

A suspension order is likely to be appropriate where there are serious concerns which cannot be reasonably addressed by a conditions of practice order, but which do not require the registrant to be struck off the Register. These types of cases will typically exhibit the following factors:

• the concerns represent a serious breach of the Standards of conduct, performance and ethics;

• the registrant has insight;

• the issues are unlikely to be repeated; and

• there is evidence to suggest the registrant is likely to be able to resolve or remedy their failings.

Paragraphs 130 and 131 of the SP state, so far as material, -

130. A striking off order is a sanction of last resort for serious, persistent, deliberate or reckless acts involving (this list is not exhaustive)
……..
• ……….. indecent images of children;
………..

131. A striking off order is likely to be appropriate where the nature and gravity of the concerns are such that any lesser sanction would be insufficient to protect the public, public confidence in the profession, and public confidence in the regulatory process. In particular where the registrant:

• lacks insight;

• continues to repeat the misconduct.. ; or

• is unwilling to resolve matters.

47. In this case, the sentence passed included a Community Order for two years with 30 days of rehabilitation activity requirement and a Sexual Harm Prevention Order of five years that placed restrictions on the Registrant’s use of the internet, as well as computers and other devices, with ancillary restrictions and requirements. As a result of his conviction, the Registrant was automatically rendered subject to the notification requirements under Part 2 of the Sexual Offences Act 2003 (previously known as being on the Sex Offenders’ Register) for a period of five years.

48. The Registrant has shown no substantial insight into his behaviour that underlay the conviction. Although he has, through Ms McCullough, assured the Panel that there is no prospect at all of his repeating the conduct, the sentencing judge assessed the risk presented by the Registrant to be sufficiently serious as to require a Sexual Harm Prevention Order of five years. This Panel considers that, despite the Registrant’s assurance, he has not demonstrated any substantial insight or remediation with respect to the conduct underlying the conviction.

49. The Panel is aware that the question of repetition in this case is essentially one that goes to public confidence in the profession and the upholding of professional standards of conduct. That is where the seriousness of this case lies.

50. The Panel acknowledges the mitigating factors that qualify the Registrant’s conduct to some degree. It has also borne in mind both the fact and period of the Interim Suspension Order and the potential effects on the Registrant of a sanction of suspension and of the more serious sanction of striking off, as well as all the matters referred to by Ms McCullough on his behalf.

51. However, the Registrant’s conviction arising out of his possession of indecent images of children strikes at the heart of public confidence in the profession.

52. The Panel has concluded that in the circumstances the conviction is very serious, involving indecent images of children. The Registrant’s conduct has been further aggravated by the circumstances summarised in the transcript of the sentencing proceedings. The Registrant’s conduct in possessing those images brought the profession into disrepute and broke one of the fundamental tenets of the profession, gravely damaging public confidence both in him as a practitioner and in the profession as a whole. The Panel is not satisfied that this would not happen again in the future.

53. In assessing the degree of harm to public confidence in the profession, the Panel has also taken into account the sentence passed by the court and the accompanying Sexual Harm Prevention Order and the notification requirements. Although the notification requirements are not part of the criminal penalty as a matter of law, they are nonetheless relevant to the Panel’s overall assessment.

54. In all the circumstances, the Panel has concluded that a Suspension Order would not be sufficient to maintain either public confidence in the profession or professional standards of conduct among members of the profession. Members of the public, informed of the circumstances of this case, including the sentence passed and other measures imposed by the criminal court (and the notification requirements), would be very concerned if the Registrant might be at liberty to practise as a Paramedic after a period of suspension, even of the maximum period of 12 months.

55. Therefore, the Panel has concluded that the nature and gravity of the concerns are such that any lesser sanction than a Striking Off Order would be insufficient to protect the public, public confidence in the profession, and public confidence in the regulatory process.

56. The Panel did bear in mind its power to transfer the case under Rule 4 of the 2003 Rules to the Health Committee. However, in view of the guidance given in the HCPTS Practice Note, Health Concerns, February 2022, the case of Crabbie v GMC [2002] UKPC 45, and the conclusions it has reached, the Panel concluded that a transfer would be inappropriate.

57. Accordingly, the Panel has decided that a Striking Off Order is necessary and appropriate in this case.

Disposal of the Health Allegation

1. Mr Foxsmith made an application for the health allegation to be discontinued, there being no public interest in a continuation of the proceedings in view of the Striking Off Order. He relied on the reasons set out in the Skeleton Argument of the HCPC and invited the members of this Panel to reconstitute themselves as a Health Committee to do so. Ms McCullough did not disagree with those submissions.

2. The Panel has considered the HCPTS’s guidance note entitled Approach to Dual Allegations, June 2021 and in particular the concluding parts of the guidance, which state –

‘Where the Panel has decided that the secondary allegation should be referred for discontinuance, the Panel should make the referral and then reconvene itself as a panel of the other committee, and make the decision to discontinue.

The registrant will be advised of the HCPC’s intentions either to discontinue or cross refer the secondary allegation before the final hearing. A skeleton argument will be provided to clearly set out the HCPC’s position.

In cases where a Striking Off Order is imposed or a Voluntary Removal Agreement is approved by a Panel in respect of the primary allegation, the secondary allegation will fall away, and the above described steps will not be required. ‘

3. The Panel refers to the last of these paragraphs. In this case, a Striking Off Order has been made and therefore the indication is that the secondary (i.e. health) allegation will ‘fall away.’ Hence, no further action on the part of the Panel is necessary.

4. Nonetheless, it is not clear to the Panel why as a matter of law ‘the secondary allegation will fall away’. That allegation remains extant, even though its pursuit may no longer be necessary.

5. In those circumstances, the Panel does consider the health allegation to be suitable for referral if it has not fallen away and in those circumstances it does not propose to reconstitute itself as a panel of the Health Committee, its power to do so being unclear despite the indications in the guidance note.

6. Accordingly, the Panel does direct that, if necessary, the health allegation be referred to the Health Committee to be considered as fit for discontinuance.

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

Interim Order

Application

1. In view of the Panel’s decision, Mr Foxsmith applied for an Interim Suspension Order. Ms McCullough stated that she could not argue against such an order being made.

Decision

2. The Panel decided an interim order to be necessary to protect against the risk of serious damage to public confidence in the profession if the Registrant were to hold unrestricted registration in the period before the Striking Off Order comes into effect, and, if he were to appeal, for the period pending disposal of the appeal.

3. In the circumstances, an Interim Conditions of Practice Order would be inappropriate, given the conclusions reached by the Panel in its decision. In view of those conclusions and the severe damage to public confidence in the profession that would be caused if the Registrant were at liberty to continue to practise in the interim period, an Interim Suspension Order of 18 months (the maximum period) is necessary.

The Panel makes an Interim Suspension Order under Article 31(2) of the Health Professions Order 2001, the same 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.

History of Hearings for Andrew Martindale