Andrew Bagnall v The Farriers Registration Council

The Appellant is a farrier. As such he is subject to the provisions of the Farriers (Registration) Act 1975 (“the Act”). Following a hearing on 30^th and 31^st October 2023 the Disciplinary Committee (“the Committee”) of the Respondent found an allegation of serious misconduct proved against the Appellant. The Committee then imposed the sanction of removal of the Appellant from the register maintained under the Act (“the Register”) and directed that he was not allowed to apply for restoration to the Register for a period of 12 months.

The Appellant appeals both the finding of misconduct and the sanction imposed.

The proceedings arose out of an incident on 8^th October 2022 when the Appellant attended at the home of Mr and Mrs Davies and of their 13 year old daughter, Sophie. The Appellant was trimming the hooves of Sophie’s pony, Shakira, in the presence of Sophie and her mother when the pony bit his head. The allegation was that the Appellant responded to being bitten in that way by repeatedly punching the pony to her head and followed that with a further attack in which he kicked the pony several times and punched her again. The Appellant denied having either punched or kicked the pony saying that, other than in the course of the trimming, his only physical contact with the pony had been as he lifted his elbow to protect himself in response to being bitten.

The Committee found that the first alleged episode (of punching) was not established but that the second episode (of kicking and punching) had happened. It found that this behaviour amounted to serious misconduct for which the only appropriate sanction was removal from the Register. The Committee’s findings and reasoning were set out in its determination (“the Determination”).

The structure of the Act and of the relevant rules was explained by Morris J in Craig v Farriers Registration Council [2017] EWHC 707 (Admin) at [10] and following. As a result I can summarise the position shortly.

The Respondent was established by section 2 of the Act.

By section 3 the obligation to establish and maintain the Register was imposed on a registrar to be appointed by the Respondent.

The Committee was established by section 14 of the Act.

Section 15 addressed the removal of names from the Register and provided for an appeal against such removal. The relevant provisions said:

By section 16 it is a criminal offence for a person who is not included in the Register to carry out any farriery.

The procedure to be followed by the Committee is laid down in the Farriers Registration Council Disciplinary Committee (Procedure) Rules Approval Instrument 1976.

The Respondent has published a Disciplinary Committee Manual (“the Manual”). This contains guidance derived from the Act, the 1976 Approval Instrument, and the Farriers Registration Council (Disciplinary Proceedings) Legal Assessor Rules 1976 together with the Council’s listing policy and a process diagram. Sections 15 – 21 of the Manual provide guidance on the approach to be taken to sanctions. These identify aggravating and mitigating factors at section 16 and then, at sections 17 – 21, identify the sanctions available and the circumstances in which they will be appropriate. Removal from the Register is addressed in section 21 which says:

The Respondent has published a Code of Professional Conduct (“the Code of Conduct”). The Code of Conduct “sets out the professional responsibilities of Registered Farriers and offers supporting guidance to them” (paragraph 1). The Code of Conduct begins with the following “guiding principles”:

Reference was made to the following provisions of the Code of Conduct in the course of the Determination.

Before me there were competing contentions as to the way in which the parties’ cases had been put before the Committee. In particular there was disagreement as to the way in which the Appellant’s case had been put. Mr Hardcastle’s argument as to how the Appellant’s case had been put was an important aspect of his contention that the finding of fact was wrong and in that regard he said that the Committee had failed properly to understand or to address the Appellant’s case.

It is necessary to establish how the cases were put before the Committee so as properly to understand the context of the Determination. It was incumbent on the Committee to have regard to the matters put before it and in particular to the nature of the Appellant’s response to the allegations against him. Provided that was done the Determination was inevitably and necessarily to be formulated by reference to the arguments addressed to the Committee and is to be considered in the context of those arguments.

It is also necessary to determine how the cases were put before the Committee because it is not normally permissible for a party to raise on appeal an argument not advanced below. Still less is it normally open to an appellant to criticise the decision-making body for failing to take account of matters which were not put before it. In large part this is a matter of common sense. If a party has put his or her case in a particular way then he or she cannot criticise the decision-making body for having addressed the matter on that basis and having formulated its decision with regard to that case rather than another which had not been advanced. To the extent that authority is needed for that approach see per Haddon-Cave LJ in Singh v Dass[2019] EWCA Civ 360 at [15] – [17] and per Lewison LJ in Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5, [2014] FSR 29 at [114] saying “the trial is not a dress rehearsal. It is the first and last night of the show”.

Mr Hardcastle submitted that the Appellant’s primary case before the Committee had been that Mrs Davies and Sophie had misconstrued what had happened. In particular, in respect of the allegation that the Appellant had kicked Shakira, Mr Hardcastle submitted that the Appellant’s case had been that the witnesses had mistaken the movement of his apron for kicks. The references to the evolution of the evidence of those witnesses was, Mr Hardcastle said, to be seen against the background of that primary submission. The evolution of the evidence was indicative of the unreliability of that evidence because it was indicative of the potential innocent contamination of the evidence as a result of discussions between Sophie and her mother. He submitted that to the extent that it was suggested that there had been deliberate fabrication of the evidence of Mrs Davies and/or Sophie or deliberate exaggeration of what had happened this was a subsidiary argument. This analysis was the basis of Mr Hardcastle’s submission that the Committee had erred by failing to address the Appellant’s primary case.

I do not accept that analysis of how the case was put before the Committee. The approach taken by the Appellant in his own evidence and on his behalf in the questioning of Mrs Davies and of Sophie and in the closing submissions of his solicitor was not only that he had not kicked Shakira. In addition the Appellant contended that Mrs Davies and Sophie had deliberately given a false account saying that he had kicked the pony when he had not done so. The Appellant did say that there had been misinterpretation of his initial action in raising his elbow but that was in respect of the alleged initial punching and even in that regard he asserted that there had been collusion. His position in respect of the alleged kicking was different. In that regard to the extent that it was said that there had been innocent misinterpretation of what had happened that was very much a subsidiary part of the Appellant’s case. I derive this conclusion from the following analysis of the proceedings before the Committee. The same conclusion follows when one stands back and looks at the core allegation. Mrs Davies and Sophie gave evidence that they saw the Appellant launch a number of kicks which connected with Shakira’s belly. It is unrealistic that such evidence could have been the consequence of an innocent misunderstanding or that those witnesses could have mistaken the movement of an apron for deliberate and repeated kicks.

In her statement Mrs Davies gave evidence of the first incident of punching and then said at [24] – [29]:

Mrs Davies gave evidence about her communication with her vet which I will address below.

When she was cross-examined Mrs Davies repeated the contention that the Appellant had kicked Shakira and Mrs Dark for the Appellant then said (transcript p54):

Shortly after that Mrs Dark said (transcript p55):

In her witness statement Sophie Davies said, at [19] and [20]:

When she was cross-examined about the initial punching episode it was put to Sophie that she had misconstrued the Appellant’s actions. However, when the cross-examination turned to the allegation that the Appellant had kicked Shakira there was the following exchange (transcript pp82 – 83):

Sophie was then cross-examined about differences between her evidence and that of her father. After Sophie had given an explanation of those differences Mrs Dark said (transcript p85):

Mr Davies gave evidence but as he did not see the incident his evidence was of limited relevance.

It was not disputed that within about 30 minutes of the incident Mrs Davies had telephoned her vet. The receptionist at the veterinary practice passed on a message asking a vet to contact Mrs Davies and reporting Mrs Davies as saying that the Appellant had “punched and kicked [Shakira] several times”. Michelle Lawrence was the vet to whom the message was passed. She telephoned Mrs Davies recorded the latter as being concerned about Shakira having suffered possible harm as a result of having been kicked.

In his witness statement the Appellant had said, at [20], that he could not “believe the extent of [Mrs Davies’s] untruthful and exaggerated allegations”. However, he also referred, at [25], to the incident having been “misconstrued”.

When he was cross-examined the Appellant said that he thought that Mrs Davies had misinterpreted his action in raising his elbow as having been him punching the pony. The Appellant was then asked whether there was anything which he had done which would explain the fact that Mrs Davies had telephoned the vet saying that he had kicked and punched Shakira and there was the following exchange (transcript p114)

Later in the cross-examination the Appellant was asked to explain how the raising of his elbow could have been misinterpreted. He accepted that the raising of an elbow looked nothing like a punch and this exchange then occurred (transcript pp118 - 119):

At p124 in the transcript there was a further exchange in which the Appellant suggested that the flailing of his apron could have been mistaken for him kicking the pony.

In her closing submissions on behalf of the Appellant Mrs Dark addressed the Committee about the differences between the accounts which Sophie had given over the time since the incident. Mrs Dark noted in particular the differences between a note which Sophie had prepared at some time closer to the incident and the statement prepared for the proceedings. She said that by the time of that statement “there [were] some quite staggering similarities” between the statements of Mrs Davies and Sophie. Then referring to those witnesses she said (transcript p143):

It follows that the Committee was correct to approach the allegation that the Appellant had deliberately kicked Shakira on the basis that the Appellant was saying that this had not happened and that Mrs Davies and Sophie had made up their evidence in that regard.

After the closing submissions the Committee’s legal assessor gave directions as to the burden and standard of proof; the approach to be taken to conflicts of evidence; the relevance of contemporaneous documents; and the fact that demeanour was an unsafe guide to the reliability of witness evidence. The directions were in unexceptionable terms. The parties’ representatives had been given an opportunity to comment on the directions and had chosen not to do so. Save to some extent in ground 1 the Appellant’s case is not that there was any error in those directions but rather that the Committee failed to apply them properly.

In the first section of the Determination the Committee summarised the evidence.

In Section 2 the Committee set out its findings of fact.

At 2.2 the Committee explained that it had found that the Council had not discharged the burden of proof so as to establish the first alleged incident of punching. In doing so it noted that the incident would have happened quickly and would have been upsetting for Mrs Davies and for Sophie. In light of that it concluded that it was “a realistic possibility” that the movement of the Appellant’s elbow could have been misinterpreted as punching.

However, the Committee then found that the Appellant had kicked and then punched the pony explaining its reasoning thus:

In section 3 the Committee considered whether the facts proved amounted to serious misconduct. It noted that Mr Weston for the Respondent had referred to paragraphs 12(a) and 16(c) of the Code of Conduct; to the presence of a child during the Appellant’s actions; and to a previous severe reprimand for striking a horse which the Appellant had received in October 2000. It noted that through Mrs Dark the Appellant had accepted that the facts found against him amounted to serious misconduct. The Committee referred to paragraph 24 of the Code of Conduct. It then said this:

The Committee then considered the appropriate sanction setting out its reasoning in section 4 of the Determination. It summarised the aggravating and the mitigating factors saying that the former were of more weight than the latter.

At 4.8 the Committee explained why it was not appropriate to take no further action saying:

At 4.10 the Committee said:

Then at 4.11 – 4.12 the Committee explained why it had concluded that suspension was not appropriate and why it was necessary to remove the Appellant from the Register saying:

The Appellant advanced five grounds of appeal.

Grounds 1 – 4 related to the finding of serious misconduct. The Appellant accepted and accepts that the deliberate kicking of a tethered pony would amount to serious misconduct. Accordingly, the appeal in respect of the finding of misconduct is as to whether the Committee had been right to find that the Appellant had kicked Shakira. Grounds 1 – 4 challenge that finding.

Ground 1 alleged an error of law in two related respects namely:

Ground 2 alleged the following material error:

Ground 3 was that:

Then at ground 4 the Appellant asserted unreasonableness as follows:

In ground 5 the Appellant submitted that the sanction of removal from the Register was “disproportionate and unjust” because the Committee:

In his skeleton argument for the Appellant Mr Hardcastle submitted that the Committee had failed to give reasons for some aspects of the Determination (such as the rejection of the Appellant’s case and of his contention that there had been collusion and/or contamination of the evidence) and that inadequate reasons had been given for its findings. In the course of submissions it was clarified that the Appellant was not seeking to advance a separate reasons challenge (for which amendment of the grounds of appeal would have been needed). Rather the alleged inadequacy of the reasoning expressed by the Committee was being advanced as a factor in support of the contention that its finding of fact and its conclusion as to sanction were wrong.

The effect of CPR rule 52.21(1) and the omission of appeals under section 15(3) from the list at CPR PD52D paragraph 19.1 is that the appeal is to be by way of review (see also the explanation given by Morris J in Craig at [28]).

The finding that the Appellant kicked Shakira was a finding of primary fact akin to those with which Morris J was concerned in Craig. At one point Mr Weston characterized that finding as being the result of an exercise of evaluative judgement of the kind considered by the Court of Appeal in Bawa-Garbav GMC [2018] EWCA Civ 1879, [2019] 1 WLR 1929. I do not accept that analysis. It is true that the finding of the kicking was the result of evaluation of the evidence and of an exercise of judgement but it was not an evaluative judgement of the kind the Court of Appeal was contemplating. In Bawa-Garba the tribunal had been engaged in considering whether suspension rather than erasure was the appropriate sanction for the appellant’s failings. As the court said at [60] that was “an evaluative decision based on many factors, a type of decision sometimes referred to as `a multi-factorial decision’. This type of decision a mixture of fact and law, has been described as `a kind of jury question’ about which reasonable people may reasonably disagree”. The finding that the Appellant had kicked Shakira was not decision of that kind. It was a finding of primary fact as to whether something had happened or not. Doubtless there could be disagreement about that but it was a question to which there could only be one correct answer.

Ground 5 was a challenge to the Committee’s determination that the appropriate sanction was the removal of the Appellant from the Register. That was indeed an exercise of evaluative judgement akin to that with which the Court of Appeal was concerned in Bawa-Garba.

The question to be asked in respect of both the finding of fact and the determination as to sanction is the same, namely whether it was either wrong or unjust because of a serious procedural or other irregularity in the proceedings before the Committee. However, the approach to be taken to answering that question is different in relation to the finding of fact and to the determination of the sanction.

In the case of the challenge to the finding of fact there is little difference between an appeal by way of review and one by way of rehearing. That is because of the deference to be accorded to findings of primary fact on an appeal by rehearing.

Morris J explained the approach to be taken in Craig and in Byrne v GMC [2021] EWHC 2237 (Admin),

In Craig at [28] – [32] Morris J summarised a number of principles applicable to appeals from professional disciplinary bodies thus:

It appears that in Byrne Morris J had the benefit of rather more extensive citation of authority (which he listed at [10]) and at [11] – [15] he summarised the effect of the authorities to which he had been referred as being:

Account is also to be taken of the summary of the applicable principles expressed thus by Warby J, as he then was, in R (Dutta) v GMC [2020] EWHC 1974 (Admin) at [21] – [22]:

Both Morris J in Byrne and Warby J in Dutta were considering an appeal by way of rehearing rather than review. However, there is no material difference between such appeals for the purposes of an appeal against a finding of primary fact: see per Morris J in Byrne at [16].

I have regard to the principles which Morris and Warby JJ summarised in that way. The effect is that where there is an appeal against a finding of primary fact by a professional disciplinary body the finding is not to be regarded as unassailable nor does an appellant have to establish a reasonable certainty that the finding was wrong. The court on appeal can, however, only conclude that the finding was wrong if it has had regard to the principles I have summarised and if, having exercised due caution and having had proper regard to the deference to be accorded to the tribunal which heard the evidence, it has then concluded that the finding was unreasonable and so unsustainable.

The decision as to the appropriate sanction to be imposed on the Appellant was an exercise of evaluative judgement of precisely the kind which the Court of Appeal had considered in Bawa-Garba. The analysis at [60] and following in that decision is, therefore, applicable. That analysis culminated thus at [67]:

I have already explained that the alleged inadequacy of the reasons given by the Committee is not being advanced as a separate ground of challenge but as supporting the primary challenge to the Committee’s conclusions. In that regard I respectfully agree with and adopt the point made thus by Morris J in Craig at [33]:

The finding that the Appellant had kicked and then punched Shakira was a finding of primary fact. The finding can only be overturned if I find that it was wrong after application of the approach set out at [57] – [63] above.

The position as it appears on an initial reading of the Determination and of the evidence can be summarised shortly.

The Committee was considering two incidents. In respect of the first it concluded that it could not exclude the possibility of misinterpretation and it found that the allegation was not proved. That is indicative of the care with which the Committee approached its task. Mr Hardcastle submitted that the Committee erred in finding that Shakira had been injured and that once it had made that erroneous finding the finding adverse to the Appellant was a “foregone conclusion”. I will deal with the deficiencies in the first part of that submission below but it is clear from its approach to the first incident that the Committee was entirely capable of analysing the issues with care and of dismissing allegations against the Appellant.

The Committee approached the second incident on the footing that either (a) Mrs Davies and her daughter were correct to say that the Appellant had kicked Shakira or (b) their evidence in that regard had been fabricated. As I have already explained fabrication taking the form of deliberate exaggeration was the Appellant’s primary case. Common sense and inherent likelihood also support the view that this was the choice the Committee had to make. The evidence from Mrs Davies was that she had seen the Appellant resting one arm on the pony to steady himself while kicking the pony with his other leg and doing so a number of times. It is verging on the nonsensical to contend that she could have given that evidence as the consequence of a genuine misunderstanding of what had happened.

The Committee then took account of three matters as supporting the evidence of Mrs Davies and of Sophie. It was entitled to do so and the dealings with the vet were of particular significance. If there was realistically no scope for a genuine misunderstanding as to whether the Appellant was kicking the pony there were only two possible explanations for those dealings. The first was that within a very short time of the incident Mrs Davies was expressing her genuine belief that the Appellant had kicked Shakira and was doing so based on what she had seen. The second was that in the same short period Mrs Davies was deliberately setting up support for a false allegation which she had already decided to make. The Committee was entitled to regard the former as the more likely explanation.

The reasons for the Committee’s conclusions were set out in short but adequate terms. The Committee explained that it was approaching the kicking allegation on the basis that either the allegation was true or that it had been deliberately fabricated in a process of collusion involving both Mrs Davies and her daughter. It then explained the considerations which had caused it to find that the allegation was true.

It follows that an initial reading of the Determination in the light of the evidence and the way in which the Appellant’s case was put at the hearing does not give rise to any concern and still less to an initial or provisional view that the conclusion reached was wrong. Do the grounds of appeal or the arguments advanced by Mr Hardcastle mean that initial assessment is to be modified?

I have explained at [19] and following above my rejection of Mr Hardcastle’s submission as to what had been the Appellant’s primary case before the Committee. It follows that it cannot be said that the Committee failed to address that primary case.

In ground 1the Appellant asserts that section 2.1 of the Determination revealed an error of law in that the Committee addressed the matter on the basis of the balance of probabilities without qualification. In the ground it is said that because of the gravity of the allegation and because of the inherent improbability that a farrier would strike a horse the Committee should have required cogent evidence before finding that this had happened. This ground was not at the forefront of the Appellant’s skeleton argument or submissions to me but it was not abandoned. It was supplemented before me by a contention that the Committee erred in its approach to the assessment of the contemporaneous evidence. The contention is untenable in both its original form and as supplemented.

The ground as originally formulated fails for two reasons.

The first is that the Appellant’s representative was given an opportunity to make submissions as to the directions given to the Committee by the legal assessor and chose not to do so. Those directions explained that the matter had to be approached on the balance of probabilities and did not refer to any need for any particular level of evidence. Having accepted the directions which were given the Appellant cannot now say that the Committee was in error to apply them.

The second and principal reason the argument fails is that it is wrong both in law and on the facts. In ground 1 the Appellant invoked the approach articulated in Re H [1996] AC 563. However, the approach set out there by Lord Nicholls is now to be seen in the light of the explanation of it given by Lord Hoffmann and Lady Hale in Re B [2008] UKHL 35, [2009] 1 AC 11. It is not the law that the more serious the allegation the stronger the evidence which is needed to establish it on the balance of probabilities. Instead, and as a matter of common sense, the fact-finding tribunal has to be conscious that the more unusual the conduct alleged then in normal circumstances the less likely it is to have occurred. However, in assessing the effect of that consideration the fact-finding tribunal has to have close regard to the particular circumstances of the case being considered and the standard of proof remains the balance of probabilities. The question for the Committee here was not the abstract one of whether it is more likely than not that a farrier will strike a horse. Instead it was the specific question of whether in the circumstances of this case seen as a whole it was more likely that the Appellant had kicked Shakira or that Mrs Davies and her daughter had fabricated the allegation that he had done so. In undertaking that exercise the Committee was entitled to take account of the inherent improbability of such deliberate fabrication. It follows that there was no error of law in this regard.

The Appellant’s contention in this regard was supplemented by the argument (overlapping to some extent with ground 3) that the Committee had erred in law in failing to follow the legal assessor’s direction as to the approach to be taken to the contemporaneous evidence.

The legal assessor had given an impeccable direction telling the Committee that contemporaneous evidence could be powerful evidence but that it was not to be accepted uncritically and that care was needed in deciding the inferences which it was safe to draw from such evidence.

The Appellant said that the Committee did not apply this approach when drawing inferences from the fact of the dealings between Mrs Davies and the vet. Mr Hardcastle submitted that those dealings did not prove that the Appellant had kicked Shakira and that the Committee erred in attaching weight to them. That contention misses the point. The relevance of the exchanges between Mrs Davies and the vet derived from both the timing and the content of the exchanges. As I have explained at [70] above the timing and content of the exchanges were highly relevant to the issue of whether Mrs Davies’s account of kicking by the Appellant had been fabricated. The Committee was entitled to take them into account as potent support for the evidence of Mrs Davies and as a potent indication that there had not been fabrication by her. The evidence of exchanges did not operate as direct evidence of whether the Appellant kicked the pony and were not treated as doing so. Instead they provided evidence of which the Committee took account when considering the reliability of Mrs Davies’s evidence and in particular when addressing the question of whether the allegation of kicking had been fabricated. There was no error of law in that approach and this argument does not advance the Appellant’s case.

In ground 2the Appellant contends that the Committee erred in its interpretation of paragraph 24 of the Code of Conduct. This does not advance the challenge to the Committee’s finding of fact. The Committee took paragraph 24 into account in considering whether the facts it had found proved amounted to serious misconduct but there is no basis for the assertion that this had any influence on the finding as to the facts.

In grounds 2 and 4 the Appellant contends that the Committee erred in finding that Shakira had been injured. The challenge to this finding was a major theme in Mr Hardcastle’s skeleton argument and in his oral submissions. He said that the finding that Shakira had been injured was a “key issue” for the Committee. The Appellant’s contention is that the Committee found that Shakira had been injured when there was insufficient evidence to justify the finding and without giving an adequate explanation of why the finding had been made. It is said that the effect of this finding permeated the Determination making the finding of misconduct a foregone conclusion.

Despite the emphasis placed on this point it is misconceived and is based on a misunderstanding of the Committee’s reasoning.

As Mr Weston explained succinctly and correctly this was not a case where the Committee found that there had been an injury to the pony and then found as a consequence that there must have been kicking by the Appellant. Rather the position was that the Committee found as a fact that the Appellant had kicked Shakira and having made that finding it then accepted the evidence that the pony had been injured.

The fact of the injury to the pony played no part in section 2 of the Determination nor in the finding that the allegation of kicking had been established. The only reference to injury in that part of the Determination occurred where the content of Mrs Davies’s comments to the vet was noted.

Having found that the Appellant had kicked the pony repeatedly it is not surprising that the Committee then accepted that there had been some injury. It would have been surprising if the Committee had not accepted the evidence of injury in those circumstances. The Committee then took the fact of injury into account in assessing whether the Appellant’s actions amounted to serious misconduct and what sanction was appropriate. Mr Hardcastle was right to point out that there was no explanation of the basis for the finding that Shakira had been injured and no analysis equivalent to that in section 2 where the Committee explained why it had concluded that the Appellant had kicked the pony. That would have been a potent criticism if the Committee’s approach had been to use the finding that the pony had been injured as an element in the reasoning leading to the conclusion that the Appellant had kicked her. However, as I have just explained that was not the process in which the Committee engaged. It follows that the absence of an explanation for this finding cannot provide support for the challenge to the Committee’s finding of fact. I will consider below its relevance to the conclusions reached as to the gravity of the misconduct and as to the appropriate sanction.

In ground 3 the Appellant asserts that the Committee had based the finding that he kicked Shakira on “illegitimate and unjustified inferences”. The Appellant criticized the weight which the Committee gave to the evidence that the pony had made a noise and to the dealings between Mrs Davies and the vet. In addition he criticized the interpretation placed by the Committee on the fact that the Appellant left without seeking payment. I reject those criticisms. They are based on a mischaracterization of the exercise in which the Committee was engaged as well as being flawed in terms of the analysis of these items.

The Committee’s finding that the Appellant had kicked the pony was not an inference drawn from other facts. Instead it was a finding of primary fact in which the Committee was considering which of the competing accounts given by the Appellant and by Mrs Davies and her daughter was the more likely. The conflict was resolved by the acceptance of the evidence of Mrs Davies and of Sophie as to the kicking. The matters to which the Committee referred in section 2.3 – 2.7 of the Determination were not facts from which inferences were being drawn but factors which were regarded (together with the inherent improbability of fabrication) as supportive of the evidence of Mrs Davies and of Sophie and in particular as making their account the more likely. The Committee was entitled to approach the case in that way and to regard those facts as supportive of the evidence of kicking.

Mr Hardcastle mounted a sustained critique of the evidence of Mrs Davies and of Sophie as to hearing Shakira make a sound. His skeleton argument contained an impressive analysis of the evolution of that evidence with a view to contending that the evidence on that point in its final state and as put before the Committee was not reliable. The contention was that the Committee should not have accepted this evidence as reliable and still less should it have regarded it as a “telling detail”. The analysis undertaken by Mr Hardcastle was impressive but the difficulty is that this was a point which was not raised before the Committee. Although Mrs Davies and Sophie were cross-examined about other changes in their statements and although Mrs Dark did submit that there had been embellishment and collusion in her closing submissions this was not in relation to the hearing of Shakira making a noise. It follows that neither Mrs Davies nor Sophie were able to address the changes in their evidence and that the Committee was not able to consider the point. It is not open to the Appellant to advance this argument now let alone to say that these matters mean that the Committee should not have accepted the evidence that Shakira made a noise. It follows that it was open to the Committee to accept that evidence. Having done so the Committee were entitled to regard it as providing significant support for the allegation that the Appellant had kicked the pony. The Committee was entitled to regard the hearing of a noise from the pony as indicative of that animal’s response to having been kicked.

I have already addressed the relevance of the evidence of the dealings between Mrs Davies and the vet and explained that the Committee was entitled to regard that as an indication that there had not been deliberate fabrication.

The Committee’s reference to the fact that the Appellant departed without payment comes closest to being a matter of drawing inferences. Mr Hardcastle was right to say that there were a number of possible explanations for why the Appellant had left without payment. However, an acceptance by the Appellant that things had gone wrong was clearly one potential explanation. The conclusion that this was the most likely explanation was very much within the remit of the Committee composed as it was of farrier and lay members and given that it had heard the oral evidence of Mrs Davies, of Sophie, and of the Appellant. In the third sentence of section 2.7 the Committee did explain why it had taken this view. The explanation was short but sufficient and it was not necessary for the Committee to rehearse the other possible explanations and then to set out its reasons for rejecting them. Having reached that conclusion as to why the Appellant left without payment then the Committee was entitled to regard it as a matter which supported the evidence of Mrs Davies and of Sophie.

In ground 3(2)(b) and in Mr Hardcastle’s submissions the Appellant contends that the Committee erred in failing to make a finding as to the credibility of the witnesses.It is said that this failing was all the more significant in circumstances where the Committee had rejected the evidence of Mrs Davies and of Sophie in respect of the first incident.

That criticism is not tenable in circumstances where the finding of fact in section 2 of the Determination is in reality an express assessment of the credibility and reliability of the witnesses. The Committee addressed the contention that there had been deliberate fabrication by Mrs Davies and by Sophie and rejected it. The Committee gave its reasons for rejecting the contention. It was not necessary for the Committee then to add in some form of formulaic mantra words to the effect of “and as a consequence the Committee finds Mrs Davies/Sophie to be an honest witness”.

The fact that the Committee found that the first incident had not been proved despite rejecting the Appellant’s allegation that there had been deliberate fabrication by Mrs Davies and Sophie is an indication of the care with which it approached its task. The finding that the evidence was not sufficient to prove the first incident does not undermine the Committee’s acceptance of the evidence of Mrs Davies and Sophie about the second incident. Matters would have been different if the Committee had concluded that Mrs Davies and/or Sophie had been deliberately giving untrue evidence about that first incident. If that had been the position then it would have been necessary for the Committee to explain why the evidence about the second incident was nonetheless being accepted. However, that was not the position. The rejection of the evidence in relation to the first incident was not on the basis of the honesty of the witness but on that basis that the possibility of confusion or misunderstanding could not be ruled out. There was no scope for misunderstanding in relation to the second incident and having rejected the allegation of deliberate fabrication the Committee was entitled to accept the evidence of Mrs Davies and of Sophie.

In ground 4 the Appellant alleges that in finding the charge proved the Committee reached a decision which was perverse and not open to it acting as a reasonable tribunal. This ground is founded on the Appellant’s challenge to the finding of an injury which is said to have been unwarranted and to have permeated the Determination. I have addressed this argument at [82] and following above and consider it further at [101] and following below. For the reasons I give there it has no substance and is to be dismissed.

The position, therefore, remains as it appeared from the initial consideration of the Determination. The appeal in grounds 1 – 4 against the finding that the Appellant kicked Shakira is to be dismissed.

At the hearing before the Committee the Appellant accepted that the kicking of a pony in the circumstances found by the Committee amounted to serious misconduct. However, in the grounds of appeal and in Mr Hardcastle’s skeleton submissions issue is taken with aspects of the approach which the Committee adopted in section 3 of the Determination. It was said in ground 2(a) that the Committee had adopted an incorrect reading of paragraph 24 of the Code of Conduct in that it had failed to appreciate that this paragraph was advisory rather than mandatory. The second criticism was of the Committee’s acceptance that Shakira had been injured.

There is no substance in either of these criticisms of the conclusion that the Appellant’s actions amounted to serious misconduct. The conclusion that the acts of the Appellant which the Committee had found as a matter of fact amounted to serious misconduct was an exercise of evaluative judgement. It follows that the approach set out in Bawa-Garba is applicable. For the following reasons there was neither any error of principle in the approach taken by the Committee nor can it be said that the conclusion reached was outside the range of those reasonably open to the Committee.

The Committee referred to paragraph 24 of Code at section 3.5 of the Determination where it said:

That passage does not show any misreading of the Code of Conduct and still less one which vitiated either the Committee’s approach or the conclusion reached. The reference to paragraph 24 was an introduction to the more general proposition in the second sentence of section 3.5. That proposition was not dependent on a view as to whether paragraph 24 was advisory or mandatory. It was a proposition as to the function of a farrier and to proper procedures which the Committee as a specialist adjudicative body containing farrier members was fully entitled to articulate and on the basis of which it was entitled to proceed.

The Appellant also criticizes the finding that the pony was injured and the account which was taken of this in sections 3 and 4 of the Determination. As I have already explained the question of whether the pony had been injured played no part in the reasoning leading up to the finding that the Appellant had kicked her. Nor was it relevant to the assessment that the Appellant did so in order to punish the pony. It follows that the Appellant intended at the least to cause Shakira pain. The acceptance of the fact that some injury was suffered follows almost inevitably from that finding combined as it was with the conclusion that Mrs Davies and Sophie were not engaged in deliberate fabrication.

If the Committee’s approach had been to treat the degree of injury (rather than the fact of some injury) as being a material factor then it would have been necessary for it to explain the reason for its conclusion as to a particular degree of injury. It is, however, clear that this was not the position. The factor which was relevant was the existence of some injury and it is apparent that this was, at most, a supplementary element in the Committee’s reasoning as to the gravity of the misconduct and the appropriate sanction. Acceptance of the fact that there had been some injury was, as just noted, an almost inevitable consequence of the other findings. In those circumstances the failure to articulate why the Committee had reached that conclusion was not a material error of principle in the approach to the evaluative exercise and for the Committee to take account of the fact that there had been some injury did not take its conclusions outside the range of those properly open to it.

The Committee’s decision on the appropriate sanction was an exercise of evaluative judgement by a specialist adjudicative body and so the challenge to it is to be judged by reference to the twofold test set out in Bawa-Garba at [67].

The Appellant contends that the sanction imposed was disproportionate and unjust in light of the six matters I have quoted at [51] above.

There is no substance in the contention that the Committee erred in accepting that the pony had been injured and in taking this into account as relevant to the sanction to be imposed. I have already explained why I am satisfied that the Committee was entitled to take account of the fact that Shakira suffered injury. That was a consideration which was clearly relevant to the degree of sanction and which the Committee was entitled to take into account. The relevant factor was not the degree of any injury suffered but the fact that there was some injury and that the harm was inflicted deliberately. It is to be noted that at section 21 the Sanctions Guidance in the Manual expressly identified “deliberate harm to an animal or deliberately risking such harm” as behaviour which was “fundamentally incompatible with being a Registered Farrier” and which might make removal from the Register appropriate.

The Appellant takes issue with the finding at section 4.10 of the Determination that his insight was limited and that as a consequence the Committee could not be confident that there was no future risk to animals or the public. The Appellant contends that the Committee should have regarded his acceptance that for a farrier deliberately to kick a horse was serious misconduct as an indication of insight on his part. The Appellant is not to be penalised for requiring the allegations against him to be proved. Nonetheless, it is relevant that his contention before the Committee was not only that he had done nothing wrong but also that the allegation that he had kicked Shakira had been fabricated. The Committee was entitled to regard that as an indication that such insight as he had was limited and to take that into account when considering the prospect of future risk. It is to be noted that the Committee approached the matter on the basis that the Appellant’s insight was limited rather than that he had no insight and that it expressly accepted, at section 4.6, that his acceptance that kicking a pony amounted to serious misconduct showed some insight.

There is similarly no force in the Appellant’s contention that the Committee did not have sufficient regard to the fact that he had practised as a farrier for 23 years without complaint since the one previous finding against him. It is said on behalf of the Appellant that if proper account had been taken of this consideration the Committee would not have found that there was a significant risk of repeat behaviour. A number of points arise. The first is the question which the Committee was asking was not whether there was a significant risk of such behaviour but rather whether it could be confident that there was not such a risk. Next, the Committee expressly acknowledged that the previous finding had been “many years ago”. It noted, at section 4.3, the points made by Mrs Dark as to the length of the Appellant’s practice and took into account, at section 4.6, that he was “clearly a highly skilled farrier who was respected by clients and other professionals”. Therefore, it cannot be said that the Committee did not have regard to those matters. The weight to be given to particular factors was very much a matter for the specialist judgement of the Committee as was the question of whether the Committee could be confident that there was no future risk. The gravity of the Appellant’s conduct has to be remembered and it cannot be said that the failure to give this aspect of the mitigation more weight or to regard it as meaning that there was no future risk was an error of principle nor that it took the decision on sanction outside the range of those properly open to the Committee.

The Appellant contends that the Committee wrongly attached weight to the previous finding against him even though it said that this had not affected its decision. The Appellant asks why the previous finding was mentioned if no account was being taken of it. Again there is no substance in this point. The explanation and reasons given by the Committee are to be accepted and taken at face value in the absence of some cogent indication that they were not correct and that this matter was taken into account despite the assertion to the contrary. At section 4.10 the Committee expressly said that it had reached its conclusion as to the inadequacy of a warning or reprimand “without regard” to the previous finding. At section 4.12 it rightly said that the previous finding was an aggravating factor but again expressly said that it would have concluded that removal was appropriate even without that matter. At section 4.12 the Committee identified the factors which meant that removal would have been appropriate regardless of the previous finding. There is nothing to indicate that these explanations were not genuine and this criticism falls away.

The Appellant says that insufficient weight was given to his mitigation. I have already noted that the Committee took account of his mitigation. The weight to be given to that mitigation was again very much a matter for the specialist judgement of the Committee. It cannot be said that there was any error in the approach taken and still less that the Committee went outside the range of the conclusions properly open to it in failing to regard the mitigation as necessitated a different sanction.

The contention that the Committee erred in failing to have regard to the strength of the evidence when considering the appropriate sanction is misconceived and can be dismissed shortly. Having made its findings of fact and having found the allegation proved in respect of the second incident the Committee was to proceed on the basis that the Appellant had done the things which it had found that he had done. The strength or otherwise of the evidence against the Appellant was wholly irrelevant when the Committee was at the stage of considering the appropriate sanction.

There was no error of principle in the approach which the Committee took. It adopted a stage by stage approach by reference to the guidance and the circumstances of the case. It reached a reasoned conclusion as to each potential level of sanction on an ascending scale of severity. Having applied that approach the conclusion it reached was unimpeachable. The reasoning set out at section 4.10 of the Determination is compelling and it cannot be said that the conclusion reached was outside the range properly open to the Committee.

It follows that there is no substance in the grounds whether considered separately or cumulatively and the appeal is to be dismissed.