Facts: Mr Bonhoeffer applied for judicial review of a decision by the GMC to admit hearsay evidence in disciplinary proceedings against him, to prove that he sexually abused a number of boys while working in Kenya in the 1990s, a charge he denied. Most of the evidence against him came from one man, who lived in Kenya but was willing to travel to the United Kingdom to give evidence. However, the GMC decided not to call him, applying instead to adduce his hearsay evidence on the basis that were he to give oral evidence he would be exposed to a risk of harm, in the form of the threat of reprisals from homophobic elements and from those allegedly loyal to Mr Bonhoeffer.

Judgment: the Divisional Court (Laws LJ and Stadlen J) allowed the application for judicial review. There was no general rule, whether under Article 6 ECHR, or in common law, entitling a person facing disciplinary proceedings to cross-examine a witness. Whether fairness required a person in Mr Bonhoeffer’s position to be permitted to cross-examine the witness depended on all the circumstances, in particular the nature of the subject-matter of the proceedings: see, inter alia, Bushell v Secretary of State for the Environment.1[1981] AC 75.The ultimate question was what protections were required for a fair trial. The more serious the allegation, the more astute the courts had to be to ensure a fair trial. In disciplinary proceedings raising serious charges amounting to criminal offences which, if proved, were likely to have grave adverse effects for the accused, there would need to be compelling reasons to prevent him from cross-examining a witness whose evidence was critical to establishing the charges, if there were no problems associated with securing the attendance of that witness. In this case, the GMC had not found that it was satisfied that the threat to the witness would be greater if he gave oral testimony than if his statements were read and no reasonable panel could reasonably have concluded that there were factors outweighing the powerful factors pointing against the admission of the hearsay evidence.