In the course of litigation following ‘Plebgate’, the claimant police officers sought judicial review of the Independent Police Complaints Commission’s decision to re-determine the mode of investigation of them.

R (on the application of Mackaill and others) v Independent Police Complaints Commission

Complaint against police – Investigation – Independent Police Complaints Commission – Defendant Independent Police Complaints Commission directing investigation against claimant police officers by relevant police forces – Claimants being found to have no case to answer – Defendant re-determining mode of investigation – Claimants seeking judicial review 

The claimant police officers were the subject of investigation as to their conduct after they had made statements to the media about what had allegedly been said by a member of parliament to them at a meeting following an incident at the gates of Downing Street in September 2012. The defendant Independent Police Complaints Commission (the IPCC) elected not to conduct its own investigation and directed an investigation by the relevant police forces, which it would supervise.

A copy of the draft report on the incident, for the purposes of paragraph 24 of Schedule 3 to the Police Reform Act 2002 (the 2002 act), indicated a difference of opinion between the investigating officer, who thought that there was a case to answer on misconduct and that of the investigating officer’s assistant that there was no case to answer (version A).

Version A was provided to the Deputy Chair of the IPCC, G, who expressed her concern with the conclusions. At a subsequent meeting, the investigating officer and his assistant orally expressed their opinions to delegated appropriate authorities. A second draft was produced at the meeting, but no opinions were contained in that version.

The appropriate authorities having concluded that there was no case to answer, the report was redrafted (version C) and sent to the IPCC. On receiving version C, G purported to re-determine the mode of investigation by turning it into an independent investigation undertaken by the IPCC, in the exercise of the powers under paragraph 15(5) of Schedule 3 to the 2002 act.

The claimants issued judicial review proceedings, seeking the quashing of that decision on the basis that the IPCC had no power to re-determine or justification in re-determining as it had done. The IPCC challenged the validity of the purported prior determination of the appropriate authorities to the effect that the claimants had no case to answer.

The issues for determination were: (i) whether there had been procedural irregularities in the decision of the appropriate authorities under, in particular paragraph 24 of, Schedule 3 to the act and the Police (Complaints and Misconduct) Regulations 2012, SI 2012/1204; (ii) what were the consequences of any procedural irregularities; (iii) whether the exercise of the power under paragraph 15(5) of Schedule 3 to the act had been validly exercised absent version C being set aside by order of the court; and (iv) whether there had been apparent bias on the part of G.

The court ruled:

(1) Through a series of misunderstandings, and lack of true appreciation of the requirements of Schedule 3 to the act and the Regulations, there had been a series of errors and irregularities. The irregularities, when taken together, had been such as to go to the heart of the validity of the reporting process and, in consequence, to the heart of the validity of the determinations of each of the three appropriate authorities (see [65], [66] of the judgment).

(2) The procedural irregularities were so wholesale and so fundamental that the consequence was that no true final report had ever been submitted, and the subsequent determinations of the appropriate authorities were, as a result, invalid and of no effect. Further, the assertion that the granting of relief in favour of the IPCC should be withheld as the same result would inevitably have been reached anyway would not be accepted (see [79], [82] of the judgment).

(3) The fact was that the IPCC had sought relief from the court, and the fact was that it had necessarily reviewed the whole matter and had judicially considered the validity of the acts in question. It was somewhere between pointless and unhelpful for the court, nevertheless, to decline to assess or give effect to the asserted validity of the exercise of the power under paragraph 15(5) of Schedule 3 to the act simply because the IPCC had not itself obtained an order from the court before exercising that power.

As the flaws had been so material as to cause there to have been no valid and lawful final report, the argument that the investigation had been concluded and the determinations made such that the power under paragraph 15(5) of Schedule 3 to the act had not been available, could not succeed (see [88], [92] of the judgment).

R (on the application of Bolt) v Chief Constable of Merseyside Police [2007] All ER (D) 261 (Nov) applied.

(4) The objection to G’s determination would be accepted on the ground of apparent bias, although it might also have been formulated by reference to the related principle of predetermination. Given the catalogue of fundamental errors entirely vitiating the previous reports and determinations, and given the circumstances of the public interest and importance attending the whole matter, there had been potentially a strong case for the exercise of the power under paragraph 15(5) of Sch 3 to the act.

Nevertheless, considerations of fairness in the public law sense and application of the principles relating to apparent bias or predetermination required that G should not herself have been the maker of the decision. Accordingly, G’s decision had to be quashed. However, the IPCC, with entirely fresh personnel in place, could properly be left to re-determine the matter under paragraph 15(5) of Sch 3 to the 2002 act and, if that be the re-determination, to manage or to conduct for itself any subsequent investigation (see [103], [108] of the judgment).

Porter v Magill, Weeks v Magill [2001] All ER (D) 181 (Dec) applied; Lawal v Northern Spirit Ltd [2004] 1 All ER 187 applied.

Hugh Davies QC and Clair Dobbin for the claimants; Tim Owen QC and Rachel Scott for the IPCC; The first interested party did not appear and was not represented; John Beggs QC and James Berry for the second interested party; Dijen Basu for the third interested party.