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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Redgrave, R (on the application of) v Commissioner of Police for the Metropolis [2003] EWCA Civ 4 (22 January 2003) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2003/4.html Cite as: [2003] 1 WLR 1136, [2003] EWCA Civ 4

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(QUEEN'S BENCH DIVISION - DIVISIONAL COURT)
(Mr Justice Moses)

		Royal Courts of Justice Strand, London, WC2A 2LL
		22nd January 2003

Lord Justice Simon Brown:

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. On 14 December 1998 the appellant was charged that he, together with DC Charman and Ms Cahill:

"On diverse days between 12 June 1998 and 17 July 1998, with the intention of perverting the course of public justice, conspired to do a series of acts which involved:

(a) the disclosure of confidential information received by the said Deborah Jane Cahill during the course of her employment by the CPS, and/or,

(b) the destruction of material received by the said Deborah Jane Cahill during the course of her said employment, and/or

(c) the concealment of the fact of any such disclosure of information and/or destruction of material;

which acts would have a tendency to pervert the course of public justice by obstructing a police investigation into the activities of the said Michael Thomas Charman and John William Redgrave and/or other the subject of the said police investigation."

9. 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:

"(1) A Magistrates' Court inquiring into an offence as examining justices shall on consideration of the evidence-

(a) commit the accused for trial if it is of the opinion that there is sufficient evidence to put him on trial by jury for any indictable offence;

(b) discharge him if it is not of the opinion …."

10. On 8 June 1999 Eady J refused the Crown's application for a voluntary bill of indictment on the same charge.
11. 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 16 July 1998, [you], being a member of the Metropolitan Police Service, acted in a manner reasonably likely to bring discredit on the reputation of the Metropolitan Police Service in that you:

(a) without authority, obtained from Deborah Cahill and viewed a copy of an interview of one Detective Sergeant Christopher Smith, and/or

(b) took steps to destroy the said copy in order to conceal the fact that you had obtained and viewed it."

12. 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.
13. 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).
14. 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.
15. 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:

"(1) Where a member of a police force has been convicted or acquitted of a criminal offence he shall not be liable to be charged with any offence against discipline which is in substance the same as the offence of which he has been convicted or acquitted.

(2) Subsection (1) above shall not be construed as applying to a charge in respect of an offence against discipline which consists in having been found guilty of a criminal offence."

16. 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.
17. 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.
18. 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:

"… we consider that the criminal and disciplinary offences are not the same in substance, in that in order to establish the disciplinary offence, there is no requirement to prove either the conspiracy, any intent to pervert the course of justice or any tendency to do so."

19. 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.
20. 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.
21. 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:

"When section 104 refers to acquittal I think it plain that the legislative intention was to refer to the case where there had been a finding of not guilty."

Mr Freeland submitted that, like a stay, a discharge too involves no finding of not guilty.

22. Moses J concluded on this issue:

"In the instant case, it must be recalled that there was no new evidence adduced at any stage, the evidence remained the same. The District Judge had determined that the prosecution case at its highest, if all the witnesses were believed, did not establish that the criminal charge was made out. It never could be made out absent the production of fresh evidence. Any finding in disciplinary proceedings, if the charges were the same, would be in conflict with that determination. There was in a real sense a determination to the extent that on the evidence the charges could not be made out. Accordingly, I conclude that the officer in the instant case was in the same position as if there had been a finding that he was not guilty of a criminal offence."

23. With regard to the second issue, the judge said:

"51. … The real question is that which is disclosed in the decision of McNeill J … in R v Police Complaints Board ex parte Madden and Rhone [1983] 1 WLR 447 at 463. He said:

'Double jeopardy, properly understood, is best described in the phrase "No man should be tried twice for the same offence". I emphasise the word "tried". The point was made plain by Lord Morris in Connelly v DPP [1964] AC 1254 at 1305, in the following words:

"In my view, both principle and authority establish:- (i) that a man cannot be tried for a crime in respect of which he has previously been acquitted or convicted; (ii) that a man cannot be tried for a crime in respect of which he could on some previous indictment have been convicted; (iii) that the same rule applies if the crime in respect of which he is being charged is in effect the same or is substantially the same as either the principal or a different crime in respect of which he has been acquitted or could have been convicted or has been convicted; (iv) that one test whether the rule applies is whether the evidence which is necessary to support the second indictment, or whether the facts which constitute the second offence, would have been sufficient to procure a legal conviction on the first indictment either as to the offence charged or as to an offence of which, on the indictment, the accused could have been found guilty."

This passage was followed in DPP v Nasralla [1967] 2 AC 238 at 249 per Lord Devlin.

This is precisely translated into the terms of police discipline by s 11(1) of the 1976 Act [the predecessor to s104] ….'

52. The question is whether the facts which constitute the disciplinary offence would have been sufficient to procure a conviction on the criminal charge. It must be remembered that the facts include intention (in the instant case in the criminal charge to pervert the course of justice) and consequences (in the instant case, tendency to pervert), as well as conduct itself ….

53. In my view, the board was plainly correct. I am fortified by the Guidance to Chief Officers on Police Complaints and Discipline Procedures 1985 edition (as amended) which draws attention at paragraph 5.14 to examples where criminal charges may differ from disciplinary charges, for example in relation to perjury, where a disciplinary charge of falsehood will not require proof that the false statement was material to proceedings, or a disciplinary charge of failure properly to care for property, which does not, unlike the Theft Act, require an intention permanently to deprive. …

54. In the instant case, it is not necessary for the prosecuting authority in the disciplinary hearings to prove either an intention or a tendency to pervert the course of justice, let alone a conspiracy.

…

57. I conclude that this police officer is not being tried for the same offence twice. It is not the same offence. This application accordingly fails."

24. In granting permission to appeal Sedley LJ observed:

"The effect of the repeal of [s104] is an important question which merits this court's attention. Did it, as the Commissioner appears to have conceded, state a common law principle which continues to operate? Or is the whole point that absent the statutory provision there is no parity between criminal and disciplinary proceedings, and therefore no question of double jeopardy …. The issue is not confined to the police service. There are many professions in which it could arise."

25. 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.
26. 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.

Discharge under section 6

27. 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:

"He has to put his argument in that way because all the authorities show that no question of autrefois acquit arises by reason of the earlier discharge of this defendant. One need not go into the details or look at the books for that proposition because everybody accepts that this is so. [Counsel for the applicant], as I say, seeks to avoid the apparent difficulty that autrefois acquit is not an argument available to him by saying that the practice has crystallised and in effect requires in these circumstances that a voluntary bill should be used. As far as I am concerned, I have no doubt that [the] argument is without substance."

28. 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.
29. 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:

"In coming to his decision the DPP or the judge should treat the decision of the resident magistrate with the greatest respect and regard their jurisdiction as one to be exercised with great circumspection. There have to be exceptional circumstances to warrant prosecuting a defendant after it has been found in committal proceedings that there is no case to answer …."

30. 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.

Double jeopardy and disciplinary proceedings

31. 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.
32. 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.
33. Lord Diplock in Ziderman at p336 said this:

"The purpose of disciplinary proceedings against a person convicted of crime is not to punish him a second time for the same offence but to protect the public who come to him as patients and to maintain the high standards and good reputation of an honourable profession."

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

"… is the Latin maxim relevant? … The full version of the maxim … is as follows; nemo debit bis vexari, si constat curiae quod sit pro una et eadem causa, or in its alternative form: nemo debet bis punire pro uno delicto (no one ought to be twice punished for the same offence)."

Returning to that question at p811 Lord Lane said:

"I can … deal with this matter very briefly because counsel for the statutory committee has not sought to argue against the contention advanced by the Society that the maxim, in whatever form one chooses to relate it, has no reference to tribunals such as this one at all. First of all, although the facts might be the same before the Central Criminal Court and before the tribunal the offence and the findings are totally distinct; and second, it is plain on the authorities that a tribunal such as this is not a court of competent jurisdiction to which the maxim applies."

35. 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:

"[Counsel] submits that if the domestic tribunal is dealing with a charge which is precisely the same as that with which the criminal court was dealing and where the degree of proof is virtually or substantially the same, then the double jeopardy rule applies. The reasoning behind it, says [counsel], is that it is highly undesirable that the acquittal by the magistrates' court should be called into question in domestic proceedings; that it is unfair that a man should be exposed twice to the same allegation and that there ought to be finality. He adopted as part of his argument passages from Friedland, Double Jeopardy, (1969) p319, which reads:

'After an Acquittal

Can disciplinary proceedings be taken for the same offence after an acquittal in the criminal courts? The answer should depend on the degree of proof required before a disciplinary tribunal. If the degree of proof required is significantly less than that in the criminal courts, then the acquittal should probably have no effect, although it would surely influence the decision whether to commence proceedings. On the other hand, if much the same degree of proof is required in each case, then a further hearing for the same cause should be considered a violation of the rule against double jeopardy. It is somewhat difficult to compare the standard of proof required because the evidentiary rules are not strictly applied before a disciplinary tribunal. However, because the consequence of disbarment or removal from the medical register is very serious to the accused, fairness to the accused would require, if not the same degree of proof, then at least one with a high degree of certainty. If this is so, then res judicata should apply and a disciplinary proceeding for an offence for which the accused has already been acquitted should be barred. Most professional disciplinary bodies probably take this view. Nevertheless, the law appears to be otherwise."

36. 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:

"I am quite satisfied that the present case is not a case of double jeopardy, the disciplinary body is not a court of competent jurisdiction; and it applies a different standard of proof."

37. 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.
38. 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.
39. 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.
40. 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.
41. 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.
42. 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.
43. 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.
44. 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.
45. 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.
46. 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:

"3.70 In deciding matters of fact the burden of proof lies with the presenting officer, and the tribunal must apply the standard of proof required in civil cases, that is, the balance of probabilities. The straightforward legal definition of the civil standard of proof is that the adjudicator is convinced by the evidence that it is more likely or probable that something occurred than that it did not occur. Relevant case law makes it clear that the degree of proof required increases with the gravity of what is alleged and its potential consequences. It therefore follows that, where an allegation is likely to ruin an officer's reputation, deprive them of their livelihood or seriously damage their career prospects, a tribunal should be satisfied to a high degree of probability that what is alleged has been proved.

3.31 Where criminal proceedings have taken place for an offence arising out of the matter under investigation and those proceedings have resulted in the acquittal of an officer, that determination will be relevant to a decision on whether to discipline an officer:

(a) where the conduct under investigation is in substance the same as the criminal charge so determined, and where the alleged failure is so serious and the likely sanction serious such that it would be reasonable to look for proof to a high degree of probability (see paragraph 3.70), it will normally be unfair to institute disciplinary proceedings; or

(b) where the conduct under investigation is not in substance the same as the criminal charge so determined, it may nevertheless be unfair to proceed where a matter essential to the proof of the misconduct was in issue in criminal proceedings and had been resolved in the officer's favour."

47. 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.

Lord Justice Mummery:

48. I agree.

Lord Justice Scott Baker:

49. I also agree.