Held, appeal dismissed. (1) The complaint served on a registered osteopath by the regulatory body was central to the disciplinary process under the Osteopaths Act 1993 and the General Osteopathic Council (Professional Conduct Committee) (Procedure) Rules 2000. The essential feature of a complaint was that it should identify for the osteopath clearly and fairly the allegations and case that he had to meet. In a case relating to conviction under section 20(1)(c), that was likely to be straightforward because it was the fact of the alleged conviction that would, if it was proved and had material relevance to the osteopath’s fitness to practise, form the basis of the committee’s consideration of the appropriate sanction to be applied. The position in a case relating to conduct under section 20(1)(a) was slightly more complicated, but the essential function of the complaint was the same—namely to identify for the osteopath the allegation and case that he had to meet. The question of unacceptable professional conduct did not arise unless and until some or all of those facts were either admitted or proved. Basic principles of natural justice required that there should be clarity about what facts were alleged to amount to unacceptable professional conduct so that the osteopath could consider what was alleged and decide whether to admit or contest any or all of the facts alleged and, on that basis, whether to admit or contest that the facts amounted to unacceptable professional conduct. The rules provided a procedure to enable the committee to determine whether the facts alleged in the complaint had been proved. Only those facts that were alleged in the complaint and had been proved could be taken into account when the committee came to decide whether to make a finding of unacceptable professional conduct. Read literally, the requirement that the committee should consider the case in private and determine whether the facts alleged in the complaint had been proved was unqualified. A number of protections for the osteopath were built into the procedure. In a case where he admitted all the facts, he might submit that the admitted facts were insufficient to support a finding of unacceptable professional conduct and, if he did, the committee must rule on that submission. Where not all of the facts were admitted the rules afforded the solicitor to the council opportunity to prove those facts alleged in the complaint which had not been admitted by the osteopath. In that case the osteopath might respond both by addressing the committee and by calling evidence. It was not inherently objectionable for a complaint over conduct to include additional matters, for example matters of background narrative or explanation provided that the complaint made clear what were the facts or matters that were alleged to have amounted to unacceptable professional conduct and what matters were additional but not part of the facts and matters that were alleged to have amounted to unacceptable professional conduct. It was not possible to be prescriptive or to lay down a hard-edged definition of what would properly be regarded as essential and what should be regarded as additional but not essential. There was no opportunity in the rules to expand the scope of the charge that was set out in the complaint. The requirement that the complaint should identify with precision and clarity the facts and matters that were alleged to amount to unacceptable professional conduct applied even where new or additional facts arose or became known. If that happened, the solution was to amend the complaint if so advised and provided that could be done without injustice. Since the opportunity to admit or not admit the facts was integral to the process, the complaint had to be formulated in such a way that enabled the osteopath to make any factual admissions clearly and unequivocally. That was equally important whether the osteopath was minded to admit all the facts or only some of them: it was essential that there should be no ambiguity about what the osteopath had or had not admitted. As to whether it was open to an osteopath to qualify or supplement his admission of facts by asserting other relevant facts, in a manner similar to offering a formal basis of plea in criminal proceedings. The rules did not expressly make provision for that to be done but the natural vehicle to enable it to happen in a case relating to conduct was rule 28. It followed that persons drafting a complaint in a case relating to conduct had to make clear what facts or matters were alleged (either singly or cumulatively) to form the basis for the allegation of unacceptable professional conduct(paras 28–32, 33–35, 37–41, 131, 132).

(2) It was essential in all cases for the complaint to specify whether the case was brought under section 20(1)(a) (a conduct case) or section 20(1)(c) (a criminal conviction case) of the 1993 Act. In principle, the fact that the conduct alleged against the osteopath amounted to a criminal offence (whether or not they were prosecuted or convicted) was capable of being a relevant factual consideration for the committee when determining the issue of unacceptable professional conduct in a case under section 20(1)(a), for two reasons. First, and in general, if it were to be proved that a course of conduct amounted to a criminal offence, that would be a marker of the seriousness that society attributed to such conduct. Second, and in particular, it was an express feature of upholding the reputation of the osteopath’s profession that they should act within the law at all times. Whether to assert in a complaint in a case relating to conduct that a specified course of conduct amounted to a criminal offence would be a fact-sensitive decision and over-prescriptive guidance was likely to be positively unhelpful. Two observations were apposite. What mattered most was that the complaint in a case relating to conduct should specify clearly and unequivocally what the council set out to prove as matters of fact that, singly or cumulatively, amounted to and justified a finding of unacceptable professional conduct. Although it might in some cases be a material averment, those formulating the complaint should consider whether reference to a particular provision of the criminal law or to the conduct being an offence added anything material to the primary facts that were being alleged as amounting to unacceptable professional conduct. Where it did, it might be preferable to achieve maximum clarity by stating it as a separate factual allegation that was additional to and discrete from the primary allegations of fact setting out the osteopath’s conduct. Ordinarily, a complaint would routinely specify whether the allegation against the osteopath was brought under section 20(1)(a) or section 20(1)(c). If that was not universal practice, it should be; and in a case brought under both provisions it was essential that the complaint made clear what was relied on under section 20(1)(a) and section 20(1)(c) respectively (paras 42–46, 131, 132).

(3) Where (a) an osteopath had been convicted of an offence, and (b) a conditional discharge had been imposed, and (c) the council brought disciplinary proceedings against the osteopath, it was not open to the council to rely upon the fact of the conviction as such. In practical terms, that meant that the council might not proceed by a case relating to conviction. However, section 14(1) of the Powers of Criminal Courts (Sentencing) Act 2000 did not prevent the council from proceeding against an osteopath by way of a case relating to conduct, the conduct in question being the conduct which provided the reason for his prosecution and the basis for his conviction. But in a case relating to conduct, it was for the council to allege and prove the facts that were said to amount to unacceptable professional conduct. If the facts alleged were not admitted by the osteopath, they had to be proved by the council. The council could not prove the facts by reference to the conviction as such. In other words, the council could not rely upon the fact of the conviction as proving the elements of the conduct which was said to amount to unacceptable professional conduct; but it could prove the facts by reference to any properly admissible evidence. There was no black-letter rule of law or procedure that prevented a registrant to a case relating to conduct from seeking either to explain or “go behind” the facts on which a conviction was based (in the sense of requiring the council to prove the facts on which the conviction was based). That said, it would always be a matter for the body to whom the registrant’s arguments were addressed to determine whether any and, if so, what weight should be attributed to them. It should do so bearing in mind all the evidence that was available to it and that there might be circumstances in which such an argument should be dismissed because it amounted to an abusive collateral attack on the prior decision of a court of competent jurisdiction. Turning more specifically to the procedural framework established by the 2000 Rules, the committee should also bear in mind that, in a case relating to conduct, the burden was on the council to prove the facts that were alleged in the complaint to amount to unacceptable professional conduct (paras 49, 56, 65, 131, 132).

(4) Accordingly, applying those principles, while the judge was in error in her analysis of the procedure that was followed by the committee, on the particular facts of the present case, which it was hoped and believed would be unique, her conclusion on the rehearing that the registrant’s conduct did not amount to unacceptable professional conduct would be upheld (paras 127–129, 130, 131, 132).