Is a police disciplinary board entitled to proceed with disciplinary proceedings against a police officer notwithstanding that an examining magistrate has previously discharged that officer on the ground that there was no sufficient evidence to warrant putting him on trial for substantially the same offence? That essentially is the question of principle raised by this appeal and it was thought of sufficient public importance for Sedley LJ on granting permission to appeal to require notice to be given to the Attorney-General and for the Attorney-General to have intervened in the appeal in order to assist the court on the issues arising.

It had appeared to be the appellant’s case that the double jeopardy rule and/or the doctrine of res judicata precluded the bringing or continuation of disciplinary proceedings in such circumstances. As will later appear, however, that case came to be very substantially modified in the course of argument. It is nevertheless, I think, desirable that we should seek to identify the true principles in play and make plain how they impact upon the present situation.

With that briefest of introductions let me now turn to state the essential facts of the case, which for the most part I take from the appellant’s skeleton argument.

The appellant has served with the Metropolitan Police Force for many years. In June 1994 an informant made allegations of corruption against him and for that he was suspended in February 1997 as also was another officer, Detective Constable Charman. The informant later complained that his handler at the time, Detective Sergeant Smith, had put him up to making these allegations, which were false, so that this officer became the subject of a separate investigation.

During that investigation DS Smith was interviewed. He made certain admissions which were of some value to the appellant and DC Charman although they, of course, were not aware of them. DC Charman had a girlfriend, Deborah Cahill, who was a Crown Prosecution Service caseworker. Detective Chief Superintendent Coles, the officer conducting the investigations both into the appellant and DC Charman on the one hand, and into DS Smith on the other, formed the view that Ms Cahill was passing details of DS Smith’s investigation to DC Charman. He accordingly arranged for certain telephone lines to be intercepted and obtained authorisation for an intrusive surveillance device to be planted in her home.

DCS Coles then arranged a conference with counsel in an unrelated case at which Ms Cahill was in attendance and during which copies of DS Smith’s interviews were distributed on the pretext that they might be of some relevance. The copy given to Ms Cahill was marked. She took it home. The next day, 16 July 1998, Ms Cahill and DC Charman invited the appellant to her home for dinner. In the course of the evening the marked copy of DS Smith’s interview was produced. Officers under the command of DCS Coles were nearby. At his order they burst into Ms Cahill’s home and she, DC Charman and the appellant were arrested.

On 17 July 1998 the appellant was served with a written notice pursuant to regulation 7 of The Police (Discipline) Regulations 1985 (the 1985 Regulations) informing him that he was subject to investigation.

On 14 December 1998 the appellant was charged that he, together with DC Charman and Ms Cahill:

At the committal hearing on 17 May 1999 the District Judge at Bow Street Magistrates’ Court declined to commit the appellant (and his co-accused) for trial and accordingly discharged them. The Judge was acting pursuant to s6 of the Magistrates’ Courts Act 1980 which, so far as relevant, provides:

On 8 June 1999 Eady J refused the Crown’s application for a voluntary bill of indictment on the same charge.

On 8 September 2000 the appellant was charged pursuant to regulation 8 of the 1985 Regulations with an offence of discreditable conduct pleaded as follows:

On 8 March 2001 the Police Disciplinary Board decided at a preliminary hearing that it would not be prejudicial or unfair to conduct a substantive hearing into that charge on account of delay, and that no issue of double jeopardy arose from the appellant’s discharge at the committal hearing on 17 May 1999, notwithstanding that it was accepted by the Board that the evidence on which the presenting officer in the disciplinary proceedings relied was in effect identical to that relied upon by the Crown in the earlier committal proceedings.

By the present proceedings the appellant has sought to impugn the Board’s rulings on 8 March 2001. Two heads of challenge were advanced on the judicial review application: the first with regard to the delay in the disciplinary proceedings; “the second concerned the application of the doctrine of res judicata and the issue of double jeopardy in disciplinary proceedings” (I quote from the appellant’s skeleton argument).

That application was dismissed by Moses J on 13 May 2002. The present appeal is directed solely to the judge’s rejection of the second ground of challenge, that based on res judicata and double jeopardy.

Before turning to consider Moses J’s judgment below it is necessary first to explain the basis upon which the argument has hitherto been conducted and to that end I must now set out the material parts of s104 of the Police and Criminal Evidence Act 1984:

That section (which re-enacted what had originally been s11 of the Police Act 1976) was repealed with effect from 1 April 1999, the same day as the 1985 Regulations were replaced by The Police (Conduct) Regulations 1999 (the 1999 Regulations). I should at once make two points with regard to this change in the Regulations: first, that whereas regulation 23(2) of the 1985 Regulations had provided that “A charge shall not be found proved unless it is … (b) proved by the officer presenting the case to the officer conducting the hearing beyond reasonable doubt”, regulation 23(3) of the 1999 Regulations provides that “The officers conducting the hearing shall not find that the conduct of the member concerned failed to meet the appropriate standard unless the conduct is … (b) proved by the person presenting the case on the balance of probabilities to have failed to meet that standard”; secondly, regulation 2(2) of the 1999 Regulations provided that the 1985 Regulations should continue to have effect with regard to complaints into police conduct prior to 1 April 1999. No such transitional provision was made with regard to the repeal of s104. Insofar, therefore as a police officer has been charged with both criminal and disciplinary offences arising out of his conduct prior to 1 April 1999, he retains the benefit of the disciplinary offence having to be determined according to the criminal standard of proof but, were he to be acquitted of the criminal offence but not until after 1 April 1999, he could not seek to pray in aid s104. Leaving to one side the question of what amounts to an acquittal, this is this appellant’s position. He is described as thereby falling into a lacuna, or black hole. I shall return to this later.

The preliminary hearing before the Board in March 2001 was conducted by everyone concerned in the mistaken belief that s 104 remained in force. As Moses J explained, that was not surprising given the byzantine history of the repeal process: certain provisions of the Police and Magistrates’ Courts Act 1994 which provided for the repeal of s104 had never been brought into effect; it had, however, come to be repealed by subsequent provisions in the Police Act 1996.

The Board appear to have assumed too that the appellant’s discharge by the examining magistrate constituted an acquittal within the meaning of the section. They nevertheless concluded that s104 did not avail the appellant on the facts of the case since:

Although, by the time of the hearing before Moses J, it was recognised by all that s104 had been repealed and so could not of itself avail the appellant, and recognised too that the appellant had not in any event been acquitted of the criminal offence and so for that additional reason too could not directly benefit from the section even had it remained in force, the appellant sought to argue that the section accurately encapsulated the common law rule against double jeopardy and that to pursue the disciplinary charge here would breach that rule. The respondent Commissioner for his part was apparently prepared to accept that for the purposes of this particular challenge the appellant should be in no worse position than had s104 remained in force. As I understand it, the thinking behind Mr Freeland QC’s concession, if such it was, was that the appellant would otherwise fall into the lacuna referred to in paragraph 16 above.

Approaching the matter in this way, Moses J, in the section of his judgment headed “Double Jeopardy” addressed two specific issues: first, whether the appellant’s discharge was tantamount to an acquittal; secondly, whether the disciplinary charge now faced by the appellant is in substance the same as the criminal offence from which he was discharged. The first issue he resolved in favour of the appellant, the second against him.

With regard to the first issue the respondent had sought to rely on Richards J’s judgment in R (on the application of Whitehead and Daglish) -v- Chief Constable of Avon & Somerset [2001] EWHC Admin 433, in which, at paragraph 23, Richards J had held that: “an acquittal is a finding or determination that a defendant is not guilty of an offence. A stay does not involve any such finding or determination”, before concluding in paragraph 24 that:

Moses J concluded on this issue:

With regard to the second issue, the judge said:

In granting permission to appeal Sedley LJ observed:

Mr Jay QC on the appeal identifies two issues of concern to the Attorney-General: first, whether the discharge of a defendant in committal proceedings before the examining magistrate under s6 of the Magistrates’ Courts Act 1980 serves the same purpose as an acquittal in the context of the double jeopardy rule and a subsequent plea in bar of autrefois acquit; secondly, whether for the purposes of the common law there is any parity between criminal proceedings and disciplinary proceedings such that the double jeopardy rule is capable to arising in the latter at all.

Both these issues are clearly of some general importance and, the appellant’s retreat from his earlier submissions notwithstanding, I think it desirable to summarise the position with regard to each.

The role of the examining justices under s6 is to determine whether or not there is sufficient evidence to warrant a jury trial. If there is not, the defendant is discharged. He is not acquitted and the plea of autrefois acquit is not available to him. In such circumstances the double jeopardy rule simply has no application. Such is the Attorney-General’s contention and it seems to me unanswerable. An authority in point is R -v- Manchester City Stipendiary Magistrate, ex parte Snelson [1977] 1 WLR 911. The challenge there was to the institution of fresh committal proceedings against the applicant following his discharge at an earlier committal hearing when, the prosecution’s application for an adjournment having been refused, no evidence was offered against him. The applicant’s contention before the Divisional Court was that the prosecution’s only right was to apply to a High Court judge to apply for a voluntary bill of indictment. As Lord Widgery CJ observed:

The position surely is plain: the very fact that a voluntary bill of indictment can be preferred following a s6 discharge of itself necessarily implies that such discharge is not equivalent to acquittal and does not give rise to a plea of autrefois acquit or otherwise engage the double jeopardy rule. Take this very case. Eady J refused the application for a voluntary bill; he did so, however, not because of the double jeopardy role, but rather because on the evidence available he thought it inappropriate to proceed further with the criminal charge.

I would refer to just one other authority on this part of the case, Lord Woolf’s judgment on behalf of the Privy Council in Brooks -v- DPP [1994] 1 AC 568. There, the DPP of Jamaica successfully applied for a voluntary bill after the resident magistrate had discharged the defendant on the ground that in her view, having heard the evidence, there was no case to answer. The challenge to the DPP’s decision to seek a voluntary bill was advanced not on the ground of double jeopardy, but rather of abuse of process. In rejecting the argument, Lord Woolf said, at p581:

I think it unnecessary to say more on this particular issue. It seems to me entirely plain that discharge at the committal stage, even when it follows upon a full consideration of the evidence, is quite unlike an acquittal and cannot found reliance on the rule against double jeopardy or on any variant of it. No more could it entitle the defendant, were he a police officer, to the benefit of s104 of the 1984 Act.

Both Mr Jay for the Attorney-General and Mr Freeland for the Commissioner contend that there is no parity between criminal and disciplinary proceedings and that the double jeopardy rule simply has no application in the context of disciplinary proceedings. This, indeed, as Mr Jay points out, is the very reason why s104 (or rather its predecessor provision, s11 of the 1976 Act) was enacted.

Three authorities seem to me of direct assistance on this issue: Ziderman -v- General Dental Council [1976] 2 All ER 334; 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. I shall content myself with brief citations from each.

Lord Diplock in Ziderman at p336 said this:

Lord Lane CJ in the Pharmaceutical Society case posed the questions at p808:

The plaintiff in Saeed had been acquitted of assaulting a child at the school where he worked as a caretaker. His employers nevertheless subsequently brought a charge against him under the staff disciplinary code alleging particulars of misconduct identical to those which had formed the basis of the previous criminal proceedings. The plaintiff claimed inter alia a declaration that the disciplinary proceedings were unlawful in that they contravened the rule against double jeopardy. Popplewell J dismissed the application. At p 640, under the heading “Double Jeopardy”, he said this:

Later in the judgment, at p643, Popplewell J referred to Connelly -v- Director of Public Prosecutions [1964] AC 1254 and Director of Public Prosecutions -v- Nasralla [1967] 2 AC 238 - which he said satisfied him that “double jeopardy in the context of this case means the peril of being convicted twice in a court of competent jurisdiction” - and then concluded:

These authorities to my mind establish that, even assuming there has been an acquittal by a criminal court, the double jeopardy rule has no application save to other courts of competent jurisdiction and there is therefore no bar to the bringing of disciplinary proceedings in respect of the same charge. And it is surely right that this should be so. Plainly it is so where the standard of proof is different: even the passage from Friedland quoted by Popplewell J in Saeed (set out in paragraph 35 above) recognises that. But in my judgment it is right also even where the standard of proof is the same, ie where the disciplinary charge too has to be proved beyond reasonable doubt - as was the case in respect of police disciplinary charges arising out of alleged misconduct prior to 1 April 1999 (as here) and, indeed, as continues to be the case under many disciplinary codes, for example those governing architects, dentists, doctors, veterinary surgeons, nurses, and, with regard to certain charges, solicitors and barristers.

There are two main reasons why the double jeopardy rule should not apply to tribunals even where they apply the criminal standard of proof. In the first place it must be recognised that the character and purpose of the proceedings is entirely different - the central point made by Lord Diplock in Ziderman (see paragraph 33 above). Secondly, however, and no less importantly, the material before the tribunal is likely to be different: in part because different rules of evidence are likely to apply and in part because judicial discretions may well be differently exercised - generally less strictly in the disciplinary context where at least the accused’s liberty is not at stake. It may also be that on occasions, as Mr Freeland suggests, witnesses will be readier to give evidence at disciplinary hearings held in private than in the full glare of open court proceedings.

Even, moreover, were the existing case law unclear on the issue, I for my part would be reluctant to introduce into tribunal proceedings the inflexibility inherent in the double jeopardy rule, least of all at a point in time when Parliament has indicated its intention of abolishing the rule, certainly in respect of some crimes, even with regard to its application in courts of competent jurisdiction.

As promised earlier, I now return to the suggested lacuna or black hole said to have been created by Parliament’s repeal of s 104 of the 1984 Act without transitional provision being made for its continued application in those cases where the officer’s conduct (having occurred prior to 1 April 1999) falls to be judged by the criminal standard of proof for disciplinary as well as criminal purposes - see paragraph 16 above.

Mr Hardy went so far as to suggest that s 104 (and s 11 of the 1976 Act before it) had done no more than declare what in any event had been the position under common law so that its repeal simply left the operation of the double jeopardy rule in place. In support of this somewhat surprising proposition he sought to invoke a passage already cited above from McNeill J’s judgment in ex parte Madden & Rhone to the effect that the double jeopardy rule “is precisely translated into the terms of police discipline by section 11(1) of the 1976 Act” - see the last sentence on paragraph 51 of Moses J’s judgment set out in paragraph 23 above. On this argument, of course, the repeal of s 104 had no legal effect since the appellant, assuming always that his discharge was to be regarded as equivalent to an acquittal, was in any event entitled at common law to the benefit of the res judicata principle.

In my judgment, however, the whole argument is misconceived: no aspect of the double jeopardy rule ever had been applicable under common law to tribunal proceedings. Obviously, where the criminal standard applies equally to both criminal and disciplinary proceedings, it is at least possible to introduce the rule by statute into a particular disciplinary scheme and that (from 1976 until the repeal of s 104 with effect from 1999) was precisely what was done with regard to police officers. McNeill J can have meant no more than this by his comment quoted above. In short, during the period referred to, police officers were singled out for special treatment - especially benevolent treatment given, as I have already explained, that the evidence available to the police disciplinary board could well have been different from, and stronger than, that available in the criminal proceedings.

There was, therefore, no lacuna or black hole created by the repeal of s 104 notwithstanding that in certain cases the criminal standard of proof still continued to apply. All of Mr Hardy’s arguments (some so extravagant that I do not propose to spend time even identifying them) founder on this rock. Except during the period when they were specifically advantaged by s 104, there is 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 referred to in paragraph 37 above.

Driven, as periodically during argument he was, to retreat from some of his wider submissions, Mr Hardy advanced arguments which really came to this: that the Police Board on 8 March 2001 should have regarded it as an abuse of process to continue with the disciplinary proceedings against this appellant having regard to the previous rejection of the criminal charge against him. This, of course, is an argument based not on any principle of double jeopardy or res judicata but rather depending upon the narrow facts of the case including, for example, Eady J’s refusal to grant a voluntary bill of indictment upon which Mr Hardy sought to place especial reliance.

These arguments, however, faced two insurmountable hurdles. First, this was never the basis upon which the Police Disciplinary Board’s decision had originally been challenged (the question of delay, no longer relied upon, aside) still less the basis upon which permission to appeal was sought or granted. Secondly, I find myself in full agreement with Moses J’s view that the board was “plainly correct” to have held that the disciplinary charge now facing this applicant in not the same or substantially the same as that from which he was discharged at the committal hearing and for which Eady J refused a voluntary bill - see paragraph 23 above.

I would end this judgment by commending to disciplinary boards generally two particular paragraphs included in the Home Office Guidance on police misconduct procedures issued in 1999:

Those paragraphs, of course, have no direct application in the present case: as already made plain, this appellant’s conduct will in any event fall to be judged by the criminal standard. For the reasons earlier given, however, I have no doubt that this appeal fails and must be dismissed.

I agree.

I also agree.