Supreme Court Considers Double Jeopardy In Professional Disciplinary Proceedings

The professional indemnity market will welcome the recent decision of the Supreme Court in R (on the application of Coke-Wallis) v ICAEW, in which the Law Lords upheld the principle of res judicata and prevented the ICAEW, the accountants regulator, from bringing disciplinary proceedings twice in relation to the same misconduct by an accountant. This was after the ICAEW had failed to successfully bring charges the first time because of a procedural error.

Although the case concerned the activities of an accountant and his regulator, it is of general interest and significance for all the professions, especially in the current climate of increased regulatory attention and pressure.

Of particular interest, are the Lords' comments on the public interest in the efficacy of the regulator's disciplinary function. Lord Clarke expressly said that he saw the force in principle of introducing a public interest exception to the res judicata rule in disciplinary cases such as these, but recognised that it was a matter for Parliament to legislate. Lord Collins also expressed displeasure at the "thoroughly undesirable result ... for purely technical and unmeritorious reasons ... the effect of the decision of this court is that a person who has shown by his discreditable conduct that he is not fit to practise may continue to do so. The primary purpose of disciplinary proceedings is not to punish, but to protect the public, to maintain public confidence in the integrity of the profession, and to uphold proper standards of behaviour".

Background

Mr Coke-Wallis, a chartered accountant in Jersey and a member of the Institute of Chartered Accountants in England and Wales (ICAEW), applied for judicial review of a decision by the ICAEW Investigation Committee to "prefer" (bring) a second disciplinary complaint against him. The second complaint arose from the same conduct, which had resulted in criminal proceedings against him in Jersey, as the first complaint, which had been dismissed by the disciplinary tribunal.

Mr Coke-Wallis carried out regulated financial services work through a number of trust companies in Jersey. In 2002 the Jersey Financial Services Commission issued a direction that no records or files in respect of his companies or customers should be removed from the companies' offices and that the companies should cease to trade. However, Mr Coke-Wallis was found at the St Helier ferry terminal with customers' documents in his car, and subsequently...