Disciplinary Proceedings after Acquittal

Disciplinary proceedings after acquittal in the criminal courts does not, of itself, make it inherently abusive for the same matter to be heard by a disciplinary panel. The concept of double jeopardy does not apply as between criminal and regulatory proceedings.

That was underlined by Sir Brian Leveson, President, giving the judgment of the Administrative Court in Ashraf v General Dental Council [2014] EWHC 2618 (Admin)).

Leave for a second appeal against the decision of the General Dental Council’s Professional Conduct Committee has now been refused by a single Lord Justice of Appeal (Vos LJ).

On the main ground, as to abuse of process, the Divisional Court had undertaken a clear analysis of the authorities and explained apparent inconsistencies between them. Furthermore, it sensibly discouraged the “continued anxious citation of this line of authority” and also, quite properly, declined to provide general guidance.

The law was to be found for all professions in paragraphs 37 and 38 of Simon Brown LJ’s judgment in R(Redgrave) v Commissioner of Police for the Metropolis [2003] 1 WLR 1136:

“[The] 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. Plainly, it is so where the standard of proof is different: even the passage from Friedland quoted by Popplewell J in Saeed [1985] ICR 637, [1986] IRLR 23, recognises that. But in my judgment it is right also even where the standard of proof is the same, i.e. where the disciplinary charge too has to be proved beyond reasonable doubt … 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 [1976] 2 All ER 334, [1976] 1 WLR 330. 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 … witnesses will be readier to give evidence at disciplinary hearings held in private than in the full glare of open court proceedings.”

The Divisional Court in Ashraf considered it important to confirm that although it was not inherently unfair to bring misconduct charges against a professional who has already been acquitted in the criminal courts, it did not mean that there would not be circumstances in which it may well be unfair to proceed. Allegations of crime (which if leading to conviction would justify erasure) may, in some circumstances, not justify further investigation by a regulator:

“Without seeking to be determinative, it might be that no further investigation by the regulator is justified because the allegations do not, in any way, touch upon professional responsibilities either to patients or (as here) to the NHS (which is required to invest trust in the integrity of the professional to fulfil the terms of the funding contract honestly).

“This elaboration, however, is not intended to be definitive guidance: regulators must each determine how they go about achieving their regulatory objectives and, bearing those objectives in mind, faithfully apply the well-known principles engaged within the concept of abuse of process.”

Refusing leave to appeal, Vos LJ observed that this passage simply made clear, as previous cases had done, that there would be some circumstances in which it might be unfair to proceed.

Ashraf was not such a case for a number of reasons including: there was new evidence available following the criminal trial, there was a need to protect the public interest and to promote high standards of professional conduct, there were additional charges concerning inappropriate contact with witnesses in connection with the investigation, and the NHS claims themselves were inappropriate as well as dishonest. Different factors would be applicable in different cases.

The law is clear, and Dr Ashraf’s lawyers have indicated that they will not be pursuing leave to appeal at a full hearing.

Cases Cited in Judgment:

Legal Framework

Bhatt v General Medical Council [2011] EWHC 783 (Admin)
Singh Wasu v General Dental Council [2013] 3782 (Admin)

Abuse of Process

R (Redgrave) v Commission of Police for the Metropolis [2003] 1 WLR 1136
Ziderman v General Dental Council [1976] 1 WLR 330
Phillips v General Medical Council [2004] EWHC 1858 (Admin)
Sacha v General Medical Council [2009] EWHC 302 (Admin

Findings of Fact

Biogen Inc v. Medusa plc [1997] RPC 1
Meadow v General Medical Council [2006] EWCA Civ 1390