Double jeopardy and disciplinary proceedings

Coke-Wallis v Institute of Chartered Accountants In England and Wales [2009] EWCA Civ 730 considered the application of principles of res judicata and autrefois acquit (the criminal version of the same principle, an aspect of double jeopardy) to disciplinary ‘prosecutions’.  It did so in the context of the disciplining of accountants.  The relevant scheme made a conviction conclusive evidence of an act likely to bring the accountant, and the profession, into disrepute. The conviction itself, and the conduct of which it was conclusive evidence were each able to justify disciplinary sanction. Mr Coke-Wallis was convicted of a crime but the disciplinary prosecution brought on that basis failed unexpectedly.  So the regulator charged him again, by reference to the conduct which was the subject of the conviction.  The English Court of Appeal held that the principles of res judicata, or autrefois acquit (which it seemed to assume applied to disciplinary proceedings) were not infringed, because the two charges were separate and distinct. That left open the question that though there was no legal bar to the second prosecution, nevertheless it constituted an abuse of process.  After analysis, no abuse was found.  English solicitors Shepherd + Wedderburn have kindly prepared a little case note.  Justice Gillard’s decision on a similar problem in Kabourakis v Medical Practitioners Board of Victoria [2005] VSC 493 is the subject of this post.

The Institute does not always seem to get everything perfect.  Take for example, the Queen’s Bench Division’s description of another prosecution, in Gorlov, R (on the application of) v The Institute Of Chartered Accountants In England And Wales [2001] EWHC Admin 220, justifying an exceptional award of costs against a professional disciplinarian:

‘The disciplinary proceedings brought by the Institute were a shambles from start to finish. The etariat began by formulating a charge which the Chairman of the Appeal Panel has characterised as “a complete nonsense” (see page 35 of the transcript). The Investigation Committee did not stop this nonsense. Instead, it found that a prima facie case was disclosed. Two months before the disciplinary hearing a lawyer employed by the Institute spotted the problem. He sought to get round it by formulating a fresh charge and proposing to substitute that. The claimant protested. His protests were brushed aside with the assertion: “There has been no reformulation of the complaint. The wording has been refined”. Thereafter, the claimant was put under pressure not to take any jurisdiction point at the hearing before the Disciplinary Tribunal on 31 March. For the reasons which I have previously stated, the claimant gave an undertaking. His lawyers took no jurisdiction point at the hearing. The Disciplinary Tribunal proceeded to make an order which was a nullity. The claimant appealed against that order. The Institute resisted that appeal. In due course the Appeal Panel set aside as a nullity the order made by the Tribunal. The conduct of the Institute throughout the disciplinary proceedings was of course honest and well intentioned. That conduct was, however, misguided. Mistake was piled upon mistake. In my view, the Institute’s conduct was unreasonable.’

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