Difficulties can arise for regulators in deciding whether to raise a complaint against a member where the underlying circumstances are similar to a previous complaint. This latest Court of Appeal decision considers when, and to what extent, a second, subsequent disciplinary complaint may be pursued arising from the same underlying facts as those previously considered in an earlier complaint determination in relation to the same individual. The case also deals with issues relating to the abuse of the complaints process and the balance of private rights against the rights of the public (the public interest).
In December 2002, Mr Coke-Wallis, a Jersey member of the Institute of Chartered Accountants in England and Wales (ICAEW) was convicted of failing to comply with a Direction of the Jersey Financial Services Commission, when police discovered him attempting to escape to St. Malo with numerous client files.
The ICAEW Investigation Committee (the Committee) therefore raised a disciplinary complaint against Coke-Wallis on the basis of his criminal conviction, which was said to constitute discreditable conduct (the Conviction Complaint). Under ICAEW's disciplinary rules, the fact that a member has been found guilty of an indictable offence in England and Wales, or of an offence corresponding to one which is indictable in England and Wales, is conclusive evidence of the commission of an act likely to bring discredit on himself or the profession of accountancy. However, the Committee found that the offence did not correspond to an indictable offence in England and Wales. Accordingly, the complaint was dismissed.
Two years later, a further complaint was raised against Coke-Wallis based upon the very same attempt to remove, improperly, documents from Jersey ("the Conduct Complaint"). This complaint was also brought under ICAEW's disciplinary scheme, and allegations were advanced that Coke-Wallis had committed discreditable conduct in attempting to remove those documents from Jersey. Although relying upon the same facts as the Conviction Complaint, the Committee held that both complaints were distinct, in that they did not allege the same thing. The discreditable act for the purpose of the Conviction Complaint was the fact of the conviction; the discreditable act for the purpose of the Conduct Complaint was the underlying conduct. In effect, in the Conduct Complaint, the Committee 'looked behind' the terms of the conviction and examined the conduct leading to the conviction, as they were unable to rely upon the conviction itself in bringing disciplinary proceedings.
Following an unsuccessful challenge of the decision by judicial review in November 2008, the matter was brought by Coke-Wallis to the Court of Appeal. Although the appeal was brought upon several bases, in essence, the principal arguments to be considered by the Court of Appeal were (i) whether by virtue of the Committee dismissing the Conviction Complaint the subsequent Conduct Complaint should fail under the principles of 'autrefois acquit' (meaning that the respondent had previously been acquitted of the same offence) or 'res judicata' (the Respondent cannot be tried for the same crime twice); and (ii) if not, whether ICAEW's bringing of the disciplinary complaint amounted in any event to an abuse of process on the part of ICAEW.
The Court examined several previous cases, and, in particular, the leading House of Lords decision in Connelly v DPP in deciding whether either the doctrines of autrefois acquit or res judicata applied. The Court decided that the Conduct Complaint did not charge the same disciplinary offence as the Conviction Complaint. The allegedly discreditable conduct was different for each complaint; the Conviction Complaint being based upon the actual conviction and the Conduct Complaint being based upon Coke-Wallis' actions in attempting to ship forbidden records out of Jersey. This was sufficient to establish that the principles of autrefois acquit and res judicata did not apply.
On the secondary issue of whether ICAEW's bringing of the second complaint was an abuse of process, it was submitted to the Court of Appeal that the Judge in the judicial review proceedings had given undue weight to ICAEW's interest in maintaining the integrity of the Profession and little or no weight to Coke-Wallis's interest in the finality of litigation. The Court of Appeal dismissed this argument. It opined that, just as there is a strong public interest in the finality of litigation, including disciplinary proceedings, there is also a strong public interest in bringing professional disciplinary proceedings in order to maintain the integrity of a Profession and its professional reputation. It was ruled that there was nothing unfair, unjust or oppressive in bringing the second Conduct Complaint, and that there was a compelling public interest in doing so.
There are a number of significant points arising from this case, not least the following:
- In general, it is not usually appropriate to prosecute the same case twice. Care should be taken at the outset of disciplinary proceedings to evaluate and crystallise the basis upon which proceedings are being instigated, with a view, if possible, to ensuring that all of the relevant facts and issues are aired at the same time.
- Care must be exercised where it is proposed to prosecute a second complaint which is very similar to a previous complaint against the same individual. Although the second complaint may (as in this situation) be competent and justified in the public interest, regulators must be careful not to infringe the fundamental principles of fairness, including res judicata and autrefois acquit.
For further discussion of the case together with supporting case law, please feel free to contact Julie Matheson, Associate, Regulation and Markets on 0131 473 5740 or Ben Kemp, Associate, Regulation and Markets on 0131 473 5437.