27 February 2023

This appeal was brought by former British Cycling and Team Sky Chief Doctor, Richard Freeman, to overturn the decision to permanently strike him off the Medical Register in 2021 after a long running MPTS Tribunal. The appeal was dismissed on all grounds by Justice Fordham after a two day hearing.

The UK Anti-Doping Agency referred Dr Freeman to the GMC in 2017 following allegations that in 2011 he had ordered a banned testosterone supplement, Testogel, will the intention that it should be used by some of his athletes as a performance enhancing drug.  Dr Freeman claimed he ordered the Testogel for Shane Sutton the British Cycling and Team Sky Head Coach to help him with erectile dysfunction. 

The principal basis for the appeal was that the MPT had erred in finding Mr Sutton to be a credible witness despite the fact that he had stormed out of the hearing during cross-examination and refused to return.  Mary O’Rourke, KC for the doctor, contended that his evidence should have been excluded, but this was rejected by the Tribunal.  It was also argued that the Tribunal erred in treating his evidence as credible and consistent. 

Mr Sutton’s walkout followed around an hour of a bad-tempered cross-examination during which Mr Sutton complained about being kept waiting two days to give his evidence, objected to comments made in his absence by Ms O’Rourke, KC for the doctor, referring to him as a liar and a doper which he had read in a Twitter live feed of the hearing, denied he suffered from erectile dysfunction and suggested that some of the questions asked by Ms O’Rourke were irrelevant and defamatory.  Justice Fordham hearing the appeal did not raise concerns about the cross-examination.

The most controversial finding by the Tribunal was that there was an objective basis to a perception held by Mr Sutton that he was being bullied and treated unfairly.  This finding was made as part of the analysis as to whether he had a good reason for not attending the hearing further, or whether he was in fact displaying a predisposition not to co-operate.  On appeal, the learned Judge rejected the suggestion that good reason could be found only if he was in fact being bullied, and not if he had simply had a perception of it.

In addition, Mr Sutton objected that during cross-examination, propositions were put to him about evidence that might exist to undermine his account without the actual evidence being revealed.  For example, Ms O’Rourke KC, cross-examined Mr Sutton to the effect that someone had told the Defence that they had seen testosterone vials in the fridge at Mr Sutton’s home, but she declined to name the person.  At one point, the GMC complained the material behind some of these questions had not been disclosed. 

Justice Fordham accepted this was a perfectly acceptable tactic by Defending Counsel.  This is a point not always accepted by GMC Prosecutors.  Defending Counsel can put questions on instructions and say to the witness that they have evidence to back the question up without being obliged to disclose the material in advance of the hearing or to the witness even at the point the questions are being asked.  It is then a matter for Counsel whether that material is ever produced during the Defence case.  If they cannot, or do not, produce the evidence they are bound by the answers the witness gave, but should not be criticised.  The Court also rejected arguments that Mr Sutton’s evidence should be excluded as sole and decisive on the issue of why the Testogel had been ordered.  There was a wealth of other evidence to found an inference that Dr Freeman’s explanation was false, including the many lies he admitted telling.  It was also heard the Tribunal was fully entitled to find Mr Sutton’s evidence which included his witness statement and the cross-examination credible and consistent.

The cross-examination of Mr Sutton was clearly challenging, however, this was a difficult witness.  The case is also of note for the findings regarding cross-examination. Witnesses cannot be ambushed, but there is certainly still scope to spring a few surprises on them without prior notice.

Natalie McCartney, Senior Associate and Solicitor Advocate: nem@bto.co.uk / 0131 222 2939