H did not declare this caution when applying to remain on the register of student optometrists as he believed that he was required to declare convictions only. H subsequently declared the caution when he realised his error.
The GOC charged H with dishonestly failing to declare his caution. The GOC's guidance to its Fitness to Practise panels stated that erasure from the register was the most severe sanction and was to be imposed only if necessary to protect the public or was otherwise required by the seriousness of the misconduct. The guidance stated also that dishonest misconduct might undermine trust in the profession, and provided that failure to disclose a caution could constitute such misconduct.
The Committee's legal adviser referred the panel to SRA v Sharma (2010), EWHC 2022, which, in relation to solicitors, stated that dishonesty would lead to striking off unless there were exceptional circumstances, and that this was applicable in the current case. The Committee concluded that H's failure to disclose the caution constituted very serious dishonesty and, therefore, misconduct. It determined that H's name should be erased from the register of student optometrists.
H appealed to the High Court. The High Court held that the legal adviser's reference to SRA v Sharma suggested that there was a presumption in favour of striking off those found to be dishonest in the case of optometrists, as well as solicitors. This was an improper reading of the GOC's guidance to its Fitness to Practise panels. The High Court further considered that it was incorrect to assume that the legal position of one profession (or regulator) was automatically the same as another. The GOC Committee had, therefore, been misdirected as to the law.
The court also decided that the Committee had been entitled to take its own view of H's conduct, based on the evidence. The CPS' view (in the form of H's caution) was a relevant but not determinative consideration.
Finally, the Committee's reasons indicated that they had treated H as being responsible for more than his role in the offence, and had in some way planned it. There was no evidence in the material before the committee to support such a finding. As a result, H's appeal was allowed.