Redgrave, R (on the application of) v Commissioner of Police for the Metropolis

The common law rule against double jeopardy applies only to successive proceedings before courts of competent jurisdiction. It does not bar disciplinary proceedings, even where they concern the same conduct as a criminal charge and apply the criminal standard of proof.

A discharge by examining justices for insufficient evidence is not an acquittal. It cannot support a plea of autrefois acquit or engage double jeopardy. Any former statutory protection preventing police disciplinary charges following conviction or acquittal depended upon the statute and did not survive its repeal as a common law rule.

A police officer was discharged at committal proceedings concerning an alleged conspiracy to pervert the course of justice. A subsequent application for a voluntary bill of indictment was refused. The officer was later charged under the police disciplinary regime with discreditable conduct arising from the same incident.

The Police Disciplinary Board ruled that the proceedings were neither unfair nor barred by double jeopardy. Moses J dismissed the officer’s application for judicial review. The officer appealed solely on the grounds of res judicata and double jeopardy.

The central questions were whether a discharge under section 6 of the Magistrates’ Courts Act 1980 was equivalent to an acquittal, and whether the common law rule against double jeopardy applied to disciplinary proceedings.

1. The appeal was dismissed unanimously. A discharge by examining justices under section 6 of the Magistrates’ Courts Act 1980 is not an acquittal. The justices decide only whether sufficient evidence exists to warrant a jury trial. The availability of a voluntary bill of indictment following discharge confirms that the discharge cannot support a plea of autrefois acquit or engage double jeopardy (Simon Brown LJ, Mummery and Scott Baker LJJ agreeing).

2. The double jeopardy rule applies to the risk of successive conviction in courts of competent jurisdiction. It has no common law application to disciplinary tribunals. Criminal and disciplinary proceedings have different characters and purposes. Discipline protects the public and maintains professional standards rather than punishing the person again for the criminal offence.

3. This conclusion applies even where the disciplinary tribunal uses the criminal standard of proof. Different evidential rules and discretions may produce different material, and witnesses may be more willing to give evidence in private disciplinary proceedings. The court declined to introduce the inflexibility of double jeopardy into tribunal proceedings.

4. Section 104(1) of the Police and Criminal Evidence Act 1984 had formerly conferred a special statutory protection upon police officers. It did not declare an existing common law rule applicable to tribunals. Its repeal therefore created no lacuna, notwithstanding that the criminal standard continued to govern disciplinary allegations concerning pre-April 1999 conduct.

5. In any event, the disciplinary allegation was not the same or substantially the same as the criminal charge. The disciplinary case did not require proof of conspiracy, an intention to pervert justice or a tendency to do so. The proposed abuse-of-process argument had not been the basis of the original challenge or the grant of permission to appeal, and it also failed on this distinction.

• Court of Appeal (Civil Division): The appeal was dismissed unanimously. The court held that the committal discharge was not an acquittal and that common law double jeopardy did not apply to disciplinary proceedings: [2003] EWCA Civ 4.
• High Court, Divisional Court: Moses J dismissed the application for judicial review on 13 May 2002. He held that the officer was in a position analogous to an acquitted person but that the criminal and disciplinary offences were not substantially the same.
• Police Disciplinary Board: On 8 March 2001 the Board ruled that continuation of the disciplinary charge was neither prejudicial nor unfair and that double jeopardy did not arise.