R Inspector Ken Mackaill and Others v Independent Police Complaints Commission Chief Constable of West Midlands Police and Others (Interested Parties)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Davis,Mr Justice Wilkie |
| Judgment Date | 06 October 2014 |
| Neutral Citation | [2014] EWHC 3170 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/126/2014 |
| Date | 06 October 2014 |
[2014] EWHC 3170 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Davis
Mr Justice Wilkie
Case No: CO/126/2014
and
Mr H Davies QC and Ms C Dobbin appeared for the Claimants.
Mr T Owen QC and Ms R Scott appeared for the Defendant.
The First Interested Party was not represented.
Mr J Beggs QC and Mr J Berry appeared for The Second Interested Party
Mr D Basu appeared for The Third Interested Party
Hearing dates: 29 & 30 July 2014
Introduction
An incident occurring at the gates of Downing Street on the evening of 19 September 2012 and involving the Rt. Hon. Andrew Mitchell MP has gained notoriety. It has commonly been styled "Plebgate". It has generated, directly and indirectly, a considerable amount of litigation. The present claim for judicial review is part of such litigation aftermath.
The claim form was issued on 10 January 2014. The three claimants (Inspector Mackaill, Detective Sergeant Hinton and Sergeant Jones) are serving police officers. They were made the subject of investigation as to their conduct after they had made statements to the media about what had allegedly been said by Mr Mitchell to them at a meeting at Mr Mitchell's Sutton Coldfield constituency office on 12 October 2012. The matter had been referred to the Independent Police Complaints Commission ("IPCC"). The IPCC elected not to conduct its own investigation; instead it directed in the early part of 2013 that there be an investigation by the relevant police forces which the IPCC would supervise. The referrals with regard to each of the claimants were for that purpose combined. In the case of Inspector Mackaill the referring force had been the West Mercia Police. In the case of Detective Sergeant Hinton, the referring force had been the Warwickshire Police. In the case of Sergeant Jones the referring force had been the West Midlands Police. In due course determinations that there was no case to answer were issued by each of the three appropriate authorities.
On 30 October 2013, and after those determinations had been issued, Deborah Glass, then Deputy Chair of the IPCC, purported to redetermine the mode of investigation into the conduct of the three claimants by turning it into an independent investigation undertaken by the IPCC. She did so acting, or purporting to act, in exercise of the powers conferred on the IPCC under the Police Reform Act 2002 ("the 2002 Act").
A quashing order of that decision is now sought on behalf of the claimants. It is said that the IPCC had no power to re-determine, or justification in re-determining, as it did. As part of its answer to the claim, the IPCC has in turn challenged the validity of the purported prior determinations of the appropriate authorities to the effect that each claimant had no case to answer, whether for gross misconduct or misconduct.
The issues arising are to a considerable extent focused on the impact of the relevant provisions contained in Schedule 3 to the 2002 Act, and in the Police Conduct (Complaints and Misconduct) Regulations 2012 ("the 2012 Regulations"), as to be applied to the circumstances of the case.
At the hearing before us the claimants were represented by Mr Hugh Davies QC leading Ms Clair Dobbin. The IPCC was represented by Mr Tim Owen QC leading Ms Rachel Scott. The respective Chief Constables were joined as Interested Parties. The Chief Constable of West Mercia Police was represented by Mr John Beggs QC leading Mr James Berry. The Chief Constable of Warwickshire Police was represented by Mr Dijen Basu. I would like to acknowledge the careful and thorough arguments all presented to the court. As for the Chief Constable of West Midlands Police, he was not represented before us. But his position, which is one of neutrality, was set out in a letter dated 7 March 2014. That letter also (rightly) makes the point that the position of the Chief Constables of the respective forces, as appropriate authorities, is to be considered separately. That is further borne out by the fact that, overall, the Chief Constable of West Mercia Police broadly supports the present stance of the IPCC; whereas the Chief Constable of Warwickshire Police broadly supports the present stance of the claimants.
Legal framework
In order to make sense of the factual background and the course which the investigation undertook I think it convenient at the outset to outline the legislative framework.
(a) Schedule 3 to the 2002 Act
The general functions of the IPCC itself are set out in s.10 of the 2002 Act. The relevant parts of the statutory scheme applicable to it, for present purposes, are found in the provisions of Schedule 3 to the 2002 Act, as incorporated by s.13 of the 2002 Act.
Part 1 of that Schedule relates to Handling of Complaints. That is not directly in point here: indeed Mr Mitchell himself has never been a "complainant" as such for these particular purposes. Part 2 of the Schedule, on the other hand, which relates to Handling of Conduct matters, is in point.
Paragraph 10 of Part 2 of the Schedule had the effect, in the circumstances of this case, of constituting the respective Chief Constables as the "appropriate authorities" for the relevant purposes. By paragraph 11 it is provided that the appropriate authority must determine whether the particular conduct matter is one which he is required to refer to the IPCC under paragraph 13.
Paragraph 13, among other things, requires the appropriate authority to refer to the IPCC a recordable conduct matter (which these matters were) if the matter is of a description specified for this purpose in regulations made by the Secretary of State. If a matter is so referred the IPCC is then, by paragraph 14, under a duty to determine whether or not it is to be investigated.
Part 3 of the Schedule relates to investigations and subsequent proceedings. It is that part of the Schedule which is most material for present purposes. Paragraph 15, in particular, had a central part in the arguments raised before us. It reads as follows:
"Power of the Commission to determine the form of an investigation
15(1) This paragraph applies where—
(a) a complaint [recordable conduct matter or DSI matter] is referred to the Commission; and
(b) the Commission determines that it is necessary for the complaint or matter to be investigated.
(2) It shall be the duty of the Commission to determine the form which the investigation should take.
(3) In making a determination under sub-paragraph (2) the Commission shall have regard to the following factors—
(a) the seriousness of the case; and
(b) the public interest.
(4) The only forms which the investigation may take in accordance with a determination made under this paragraph are—
(a) an investigation by the appropriate authority on its own behalf;
(b) an investigation by that authority under the supervision of the Commission;
(c) an investigation by that authority under the management of the Commission;
(d) an investigation by the Commission.
(5) The Commission may at any time make a further determination under this paragraph to replace an earlier one.
(6) Where a determination under this paragraph replaces an earlier determination under this paragraph, or relates to a complaint or matter in relation to which the appropriate authority has already begun an investigation on its own behalf, the Commission may give—
(a) the appropriate authority, and
(b) any person previously appointed to carry out the investigation,
such directions as it considers appropriate for the purpose of giving effect to the new determination.
(7) It shall be the duty of a person to whom a direction is given under sub-paragraph (6) to comply with it.
(8) The Commission shall notify the appropriate authority of any determination that it makes under this paragraph in relation to a particular complaint [recordable conduct matter or DSI matter]."
Paragraphs 16, 17, 18 and 19 then in turn set out the provisions respectively applicable to investigations made by the appropriate authority on its own behalf; investigations supervised by the IPCC; investigations managed by the IPCC; and investigations by the IPCC itself. In circumstances I will come on to recount, we are here concerned with a supervised investigation (which is the subject of paragraph 17).
Among other things, on a supervised investigation the appropriate authority is required to appoint "a person serving with the police" to investigate the matter in question. That person ("the Investigating Officer") is required to comply with requirements imposed by the IPCC with regard to carrying out the investigation, in accordance with regulations made by the Secretary of State: para 17(7).
Paragraph 22(3) requires that a person appointed under paragraph 17 or 18 should submit a report of his investigation to the IPCC and send a copy of that report to the relevant appropriate authority. Paragraph 22(7) has the effect, in this regard, of empowering the Secretary of State to make regulations relating to the contents of reports. Paragraph 23 sets out the action permitted or required on the part of the IPCC in response to receipt of an investigation report. Paragraph 24 then...
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