Nicholas M Yule

Preliminary Matters

Application for the Hearing to be in private

1.Mr D’Alton applied for the Hearing to be conducted partly in private. He stated that this was because, in the course of the Hearing, the Panel would hear information which related to the Registrant’s health.

2. Mr D’Alton drew the Panel’s attention to an email, dated 8 June 2023, in which the Registrant stated:

[Redacted]

3. Mr D’Alton submitted that, if the Registrant’s email was to be treated as request made by the Registrant for the Panel to conduct the entirety of the Hearing in private, the HCPC objected to such a course of action. The Registrant had been convicted in open court and his convictions were a matter of public record.

4. The Panel, having heard and accepted the advice of the Legal Assessor and having regard to the HCPTS Practice Note, ‘Conducting Hearings in Private’, decided that it would convene in private when matters connected to the Registrant’s health were being considered. The Panel agreed with Mr D’Alton’s submission that there was no basis for the entirety of the hearing to be conducted in private.

Service

5. Notice of the hearing was served by email on the Registrant’s registered email address on 1 June 2023.

6. The Panel, having heard and accepted the advice of the Legal Assessor, was satisfied that the Registrant had been given the required notice and that service had been effected in accordance with The Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 (‘the Rules’).

Application for the Hearing to proceed in absence

7. Mr D’Alton invited the Panel to proceed in the Registrant’s absence on the basis that the Registrant had voluntarily absented himself from the Hearing. He referred the Panel to relevant correspondence contained in the hearing bundle and, in particular, an email, dated 21 June 2023, from the Registrant’s representative which stated as follows:

‘I can confirm that neither Mr Yule nor I will be in attendance for the hearing.’

8. The Panel heard and accepted the Legal Assessor’s advice and had regard to the HCPTS Practice Note, ‘Proceeding in the Absence of the Registrant’.

9. The Panel was satisfied that it was fair and appropriate to proceed in the Registrant’s absence. The email, dated 21 June 2023, from the Registrant’s representative was an unequivocal indication that the Registrant did not intend to attend the Hearing. The Panel was satisfied that the Registrant had voluntarily absented himself from attending the Hearing. Further, there was no basis upon which to suppose that adjourning the Hearing to a later stage would secure the Registrant’s attendance or the attendance of a representative on his behalf.

10. The Panel also considered the other factors which weighed in favour of the Hearing proceeding in the Registrant’s absence. The allegations were serious and, as such, the Panel considered that the public interest was engaged in this case.

11. The Panel noted that proceeding in the Registrant’s absence could cause some disadvantage to him. However, the Panel considered that it could attach such weight, as it considered appropriate, to the written material provided to the HCPC by the Registrant in the course of these proceedings.

12. For all the reasons advanced, the Panel considered that it was fair and appropriate to proceed in the Registrant’s absence.

Background

13. The Registrant is a registered Radiographer with the HCPC.

14. At the relevant time, the Registrant was employed by the Cwm Taf Morgannwg University Health Board ('the Health Board').

15. On 25 May 2021, the HCPC received a referral from the Health Board in respect of the Registrant. The Health Board outlined that the Registrant had been arrested at work on 18 May 2021 in connection with equipment thought to be owned by the Registrant used to access child pornography.

16. In April 2022, the HCPC received confirmation from the Health Board that the Registrant had been charged as follows:

i. 3 counts of distributing an indecent photograph/pseudo photograph of a child;
ii. 3 counts of possessing an indecent photograph/pseudo of a child; and
iii. 1 count of possessing a prohibited image of a child.

17.  On 3 May 2022, the Registrant pleaded guilty to all seven counts with which he had been charged. The Registrant was subsequently sentenced on 24 June 2022 as follows:

i. 2 years’ imprisonment suspended for 2 years;
ii. Rehabilitation activity requirements as directed;
iii. 100 hours’ community service to be completed before 30 June 2023;
iv. To pay a victim surcharge of £140;
v. 10 years on the Sex Offender Register; and
vi. Made subject to a sexual harm prevention order for a period of 10 years.

18. On 9 September 2022, further to his conviction, the Registrant was dismissed by the Health Board.

19. On 3 November 2022, a Panel of the Investigating Committee found the Registrant had a case to answer in respect of the Allegation detailed above.

20. The Panel heard a submission from Mr D’Alton in relation to facts, grounds and impairment. Mr D’Alton invited the Panel to find the facts and grounds proved by reference to the Certificate of Conviction which was contained in the hearing bundle. Further, Mr D’Alton submitted that, by reason of his conviction, the Registrant’s fitness to practise was currently impaired in respect of both the personal and public components.

21. Prior to retiring to consider its decision on facts grounds and impairment, the Panel received advice from the Legal Assessor. The Panel accepted the Legal Assessor’s advice.

Decision on Facts

22. The Panel had regard to the Certificate of Conviction and rule 10(1)(d) of the Rules which states as follows:

‘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 was based.’

23. The Panel also noted the Registrant’s admissions made in the course of these proceedings together with the sentencing remarks and the HCPC’s case statement.

24. Accordingly, the Panel found the facts proved.

Decision on Grounds

25. In the exercise of its independent judgement, the Panel was satisfied that the Registrant’s conviction, and his actions which gave rise to the conviction, constituted a very serious breach of professional standards.

26. The Registrant, over a period covering February 2020 until April 2021, had uploaded in excess of 100 indecent images and photographs of children using an online chat platform called KIK. The indecent images fell into all three classifications – Category A to C. The Registrant had distributed these images to others. He had engaged in online conversation with at least one other person expressing a sexual interest in children, and his online search history also suggested such an interest.

27. Accordingly, the Panel considered that the Registrant had breached the following applicable standard of the HCPC’s ‘Standards of Conduct, Performance and Ethics’ (2016):

‘Standard 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.’

Decision on Impairment

28. The Panel considered that, with full insight and compelling evidence of remediation, the Registrant’s actions which had resulted in his conviction were, in principle, capable of remedy.

29. The Panel addressed the question as to whether the Registrant had, in fact, remedied the conduct which had resulted in the Allegation. In his statement, dated 8 June 2023, the Registrant set out the backdrop which had resulted in his arrest, prosecution and conviction. He stated that, during the pandemic, he had been working 12-hour shifts at his place of work. He had returned home to an empty house. The Registrant stated that [redacted]. As a means by which to interact with others socially, the Registrant joined the KIK online platform. Things took an ‘unsavoury’ turn very quickly. The Registrant stated that someone on the platform sent him images which he, in turn, forwarded on to someone else. The Registrant denied that he had looked at the images in question but had pleaded guilty to possessing and distributing them as they were contained on his electronic devices which had been seized by police as evidence.

30. At the time, the Registrant stated that [redacted]. The Registrant stated that he had [redacted]. The Registrant had sought support from the Lucy Faithful Foundation after his arrest. He had completed the community elements of his sentence and the Registrant stated that his Probation Officer had been pleased with his progress.

31. The Registrant concluded his statement as follows:

‘I have done nothing like this since the incident (which only covered a very short period) and have not participated in any chat room or social media and I am now much more cautious with anything online. This is a situation I very much regret to have found myself in and would like to assure the Panel that I fully accept the consequences of my foolish actions.’

32. While the Registrant had expressed regret and remorse for his actions, there were some elements of the Registrant’s statement which troubled the Panel. First, the Registrant’s assertion that he had not viewed any of the indecent images stood in contrast to the judge’s sentencing remarks which stated as follows:

‘The police attended your place of work where you were arrested. Your home was searched later that day and a mobile phone and a laptop computer were seized. You were interviewed. In the interview you said you had received indecent images during conversations via KIK, but you deleted them as soon as you realised their content. Now that was not true. You had kept images and, in fact, distributed images to others and still had accessible images at the time of your arrest.’

33. Second, the Panel agreed with the judge who, in the course of the sentencing remarks, characterised the period over which the Registrant’s offending took place as ‘prolonged’ and not a very short period as set out by the Registrant in his statement. Further, the Panel noted that at least part of the Registrant’s offending occurred prior to the pandemic and the difficult working conditions which the Registrant had described as being a contributory factor in his offending.

34. Third, there was a lack of independent evidence of remediation. For example, there was no material from the Lucy Faithful Foundation or his Probation Officer to support the points which the Registrant had made in his statement.

35. The Panel acknowledged that the Registrant had complied with the requirements of the Court including the direction from his probation officer. However, the Panel saw no significant evidence of independent steps taken to remediate by the Registrant.

36. The Panel’s view was that while the Registrant had demonstrated some insight, this was poorly developed and superficial. There was a tendency on his part to minimise the seriousness of his wrongdoing and he described his actions to be foolish and naïve. There was a self-focus on the impact which the Registrant’s actions had brought about on himself and his family. There was an absence of appreciation of the significant and serious impact which those actions would have had on the victims whose images the Registrant had distributed and as a Senior Radiographer the wider impact they would have on professional colleagues, patients and the general public. Accordingly, the Panel concluded that there was a risk of repetition and that a finding that the Registrant’s fitness to practise was impaired was required to protect the public.

37. The Panel next considered whether it was appropriate to make a finding of current impairment of the Registrant’s fitness to practise on public interest grounds, namely, the need to promote and maintain public confidence in the profession and the need to promote and maintain proper professional standards for those professionals.

38. The Panel had regard to the sentencing remarks in which it was stated:

‘Your day job involved caring for people at a point when they were sometimes in most need. In the personal life you had the polar opposite. They are not victimless crimes, far from it. You were viewing abuse and pain caused to young children. Suffering distress, psychological and physical, and the long-term damage to those children, we will never know the extent of that. All for sexual gratification. Your role, of course, is an important role. Without the people willing to distribute such matters, these images would not find the wide audience they do.’

39. In light of the gravity of the Registrant’s offending, it was plain to the Panel that a finding of current impairment was required on public interest grounds. Not to make such a finding, in the Panel’s view, would seriously undermine the public’s trust and confidence in the profession and would fail to promote and maintain proper professional standards.

40. The Panel had regard to the formulation provided by Dame Janet Smith in her Fifth Report to the Shipman Inquiry, which was cited with approval by Cox J in CHRE v NMC and Grant [2011] EWHC 927 (Admin) (‘Grant’):

‘Do our findings of fact in respect of the [Registrant’s] conviction …show that his fitness to practise is impaired in the sense that he:
i. […]
ii. Has in the past brought and/or is liable in the future to bring the profession into disrepute; and/or
iii. Has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the profession; and/or
iv. […]’

41. The Panel was satisfied that, looking backwards, both applicable limbs of the formulation in Grant were engaged. The Panel was also satisfied that both limbs were engaged in respect of the Registrant’s actions in the future.

42. Accordingly, the Panel has decided, on public protection and public interest grounds, that the Registrant’s fitness to practise is currently impaired by reason of his conviction.

Decision on Sanction

43. The Panel heard a submission from Mr D’Alton in relation to what, if any, sanction should be applied to the Registrant’s registration. Mr D’Alton drew the Panel’s attention to what, in his submission, were the aggravating and mitigating factors in the case. He left the question of sanction to the Panel’s independent professional judgement.

44. The Panel heard and accepted the advice of the Legal Assessor. The Panel, he advised, should exercise its judgement to arrive at a proportionate sanction that would adequately protect the public and uphold the public interest. The Committee was also advised to have regard to the Sanctions Policy (‘the SP’) issued by the HCPC (Last updated March 2019).

45. The Panel, in accordance with paragraphs 42-55 of the SP, considered the aggravating factors. These were:

i. The extremely serious nature of the offences of which the Registrant was convicted;
ii. The Registrant’s offending occurred over a prolonged period;
iii. Limited evidence of insight;
iv. Limited evidence of remediation; and
v. Risk of repetition.

46. The Panel, in accordance with paragraphs 25-41 of the SP, considered the mitigating factors. The Panel identified the following:

i. Some evidence of regret/ remorse;
ii. Engagement with the regulatory proceedings and an early admission as to the facts; and
iii. The Registrant had pleaded guilty in the criminal proceedings.

47. In considering possible mitigating factors, the Panel gave consideration to a number of other matters.

48. First, the Panel noted what the Registrant had to say in his written submissions [redacted].

49. Second, the Panel also noted the Registrant’s assertion as to [redacted]. The Panel noted, as it did in the Impairment section of this decision, that, at least in part, the Registrant’s offending occurred at a point in time before the onset of the pandemic. In addition, the Panel shared the view expressed by the judge who, in the course of the sentencing remarks, stated as follows:

‘I accept that serving as a radiologist [sic] during the Covid pandemic would have been an extremely challenging, stressful time. Some of the offending occurred before the pandemic, some during the pandemic. However, many people in the country, especially those working for the NHS like you, had very difficult times in the workplace and hospital, but they did not seek to deal with the stress of the situation by viewing and exchanging images of children being sexually abused.’

50. Consequently, the Panel placed very limited weight on both these matters when considering mitigating factors.

Consideration of Sanction

51. The Panel first considered the sanction of Mediation and concluded that it was not appropriate - the matter was too serious to be resolved in this way. The Panel also considered, given its findings, that taking no further action or imposing a Caution Order would be wholly inadequate to protect the public or uphold the public interest.

52. The Panel next considered whether a Conditions of Practice Order would be appropriate and proportionate.

53. The most important factor when addressing the appropriateness of a Conditions of Practice Order was the seriousness of the findings which had been made against the Registrant. The seriousness of those findings, combined with limited evidence on the Registrant’s part of insight and remediation, led the Panel to conclude that a Conditions of Practice Order would be neither appropriate nor proportionate to protect the public and uphold the public interest.

54. The Panel next considered imposing a Suspension Order and noted paragraph 121 of the SP which states:

‘121. 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.’

55. The Panel concluded, given the extremely serious nature of the Registrant’s conduct which had resulted in his conviction, taken together with the limited evidence of insight and remediation, that a Suspension Order was neither an adequate nor proportionate sanction to impose in respect of the Registrant’s registration.

56. The Panel noted the guidance in the SP that a Striking-Off Order is a sanction of last resort for serious, persistent, deliberate or reckless acts and which included the possession of indecent images of children.

57. At paragraph 131 of the SP, it states:

‘A striking off order is likely to be appropriate where the nature and 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 is the registrant:

• lacks insight;
• continues to repeat the misconduct;
• is unwilling to resolve matters.’

58. The Panel had careful regard to paragraphs 87 to 89 of the SP and, in particular, paragraph 89 which states:

‘89. 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.’

59. The Panel carefully considered the seriousness of the Registrant’s offending. The Registrant had been in possession of indecent images of children and had distributed these images to others over a protracted period. There was an attempt by him to downplay the seriousness of the criminality in which he had engaged. There was limited and partial insight and a lack of evidence from independent sources that he had remediated his offending.

60. The Panel concluded, for these reasons, that the Registrant’s actions were at the uppermost end of the spectrum of seriousness and that no lesser sanction, other than a Striking-Off Order, would be appropriate or proportionate to protect the public and uphold the public interest.

61. In making its decision, the Panel considered the severity of the impact of a Striking-Off Order on the Registrant but concluded, having regard to all the circumstances, that his interests were outweighed by the need to protect the public and uphold the public interest.

62. Accordingly, the Panel decided that the only appropriate and proportionate sanction to impose, in all the circumstances, was a Striking-Off Order.

ORDER: The Registrar is directed to strike the name of Mr Nicholas Yule from the Register on the date this Order comes into effect.

Application for Interim Order

1. Mr D’Alton applied for an interim order on the grounds that such an order was necessary for the protection of members of the public and was otherwise in the public interest.

2. The Panel was satisfied that in the Notice of Hearing the Registrant had been put on notice that, in the event that the Panel imposed a substantive order, such as a Striking-Off Order, an interim order application might be made. It was in the public interest to hear the application as soon as possible. The Panel was satisfied that it was fair to proceed in the absence of the Registrant.

3. The Legal Assessor advised the Panel that an interim order could only be made if the Panel was satisfied that one or more of the statutory grounds were present:

• it is necessary for the protection of members of the public; and/or
• it is otherwise in the public interest; and/or
• it is in the interests of the registrant concerned.

4. If a Panel found that one or more of the statutory grounds was present, the Panel could make either an interim conditions of practice order or an interim suspension order. Such an order could run for a maximum period of 18 months, but the Panel should exercise its discretion in identifying the appropriate period.

5. The Panel took into account that the Striking-Off Order made today will not take effect until, at least, 28 days from now. That period may be longer if the Registrant decided to appeal against the Panel’s decision within the appeal period.

6. The Panel considered all of its findings and conclusions as above. The Panel was satisfied, in light of its findings, that an interim order was necessary to protect the public. The Panel was also satisfied that it was in the public interest to impose an interim order, as members of the public would be concerned if there were no restrictions on the Registrant’s practice pending the final determination of any appeal.

7. Accordingly, the Panel was satisfied that an interim order was necessary both for the protection of members of the public and was otherwise in the public interest.

8. For the same reasons as those advanced in the substantive decision, the Panel considered that an interim conditions of practice order would be neither appropriate nor proportionate. In addition, the Panel was of the view that any such interim order would be inconsistent with its reasons for concluding that a substantive Conditions of Practice Order was inadequate to protect the public and insufficient to uphold the public interest.

9. In those circumstances the Panel concluded that it was appropriate and proportionate to make an interim suspension order.

10. The Panel was satisfied that it was appropriate and proportionate to make such an order for the maximum available period, namely for a period of 18 months to cover any possible appeal.

Decision

The Panel makes an Interim Suspension Order 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.

History of Hearings for Nicholas M Yule