Where criminal and disciplinary offences were not the same in substance and the facts that constituted the disciplinary offence would not have been sufficient to have procured a conviction on a criminal charge then there was no double jeopardy in bringing the disciplinary proceedings. No aspect of the double jeopardy rule had ever been applicable under common law to tribunal proceedings. There was no lacuna created by the repeal of s 104 notwithstanding that in certain cases the criminal standard of proof still continued to apply.Appeal from a decision of Moses J made on 13 May 2002 refusing the appellant's application for judicial review. R was a police officer who had been arrested on 16 July 1998 in respect of disclosure and destruction of material obtained from the Crown Prosecution Service. Following his arrest he was informed that he was to be the subject of an investigation into a disciplinary offence. R was charged with perverting the course of justice. That charge was dismissed at committal stage in the magistrates' court. A decision to instigate disciplinary charges was later taken and R was served with that charge. R sought judicial review of the decision. Moses J held that: (i) in deciding whether disciplinary proceedings should not to be proceeded with because of delay, the correct approach was to consider whether a fair or just hearing would be possible in light of such delay and prejudice as a claimant could establish; (ii) where criminal and disciplinary offences were not the same in substance and the facts that constituted the disciplinary offence would not have been sufficient to have procured a conviction on a criminal charge then there was no double jeopardy in bringing the disciplinary proceedings. R appealed. An issue arose as to the effect of the repeal of s.104 Police and Criminal Evidence Act 1984. Did the section state a common law principle that continued to operate, or was the whole point that absent the statutory provision there was no parity between criminal and disciplinary proceedings and therefore no question of double jeopardy. In view of of the important question of principle raised the Attorney-General was given notice to intervene in the appeal to assist the court. Two issues concerned the Attorney-General: (i) whether the discharge of a defendant in committal proceedings under s.6 of the Magistrates' Courts Act 1980 served the same purpose as an acquittal in the context of the double jeopardy rule and a subsequent plea in bar of atrofois acquit (ii) whether for the purposes of the common law there was any parity between criminal proceedings and disciplinary proceedings such that the double jeopardy rule was capable of arising in the latter.HELD: (1) No aspect of the double jeopardy rule had ever been applicable under common law to tribunal proceedings. Obviously where the criminal standard applied equally to both criminal and disciplinary proceedings it was at least possible to introduce the rule by statute into a particular disciplinary scheme and that was precisely what had been done with regard to police officers. There was therefore no lacuna created by the repeal of s.104 notwithstanding that in certain cases the criminal standard of proof still applied. Except for the period when they were specifically advantaged by s.104, there was no more reason why police officers should enjoy the benefit of the res judicata part of the double jeopardy rule than the various other professions. (2) Even assuming that there had been an acquittal by a criminal court, the double jeopardy rule had no application save to other courts of competent jurisdiction and there was therefore no bar to the bringing of disciplinary proceedings in respect of the same charge Ziderman v General Dental Council [1976] 2 All ER; R v Statutory Committee of Pharmaceutical Society of Great Britain [1981] 2 All ER 805 and Saeed v Greater London Council (Inner London Education Authority) [1985] ICR 637) applied. (3) Discharge at the committal stage, even when it followed a full consideration of the evidence, was unlike an acquittal and could not found reliance on the rule against double jeopardy or on any variant of it. (see R v Manchester City Stipendiary Magistrate, ex parte Snelson [1977] 1 WLR 911).

[2003] EWCA Civ 4

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