[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Mackaill & Ors, R (on the application of) v West Midlands Police & Ors [2014] EWHC 3170 (Admin) (06 October 2014) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2014/3170.html Cite as: [2014] EWHC 3170 (Admin)

[New search] [Printable RTF version] [Help]

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		6th October 2014

Lord Justice Davis:

Introduction

1. 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.
2. 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.
3. 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").
4. 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.
5. 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.
6. 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

7. 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

8. 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.
9. 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.
10. 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.
11. 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.
12. 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]."

13. 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).
14. 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).
15. 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 extends to the action required of an appropriate authority on receipt of the investigation report.
16. Paragraph 24, in the relevant respects, provides as follows:

"24(1) This paragraph applies where—

(a) a report of an investigation is submitted to the appropriate authority in accordance with paragraph [22(2)] ; or

(b) a copy of a report on an investigation carried out under the supervision of the Commission is sent to the appropriate authority in accordance with paragraph [22(3)] .

(2) On receipt of the report or (as the case may be) of the copy, the appropriate authority—

[(a) shall determine whether the conditions set out in sub-paragraphs (2A) and (2B) are satisfied in respect of the report;]

(b) if it determines that [those conditions are so satisfied], shall notify the Director of Public Prosecutions of the determination and send him a copy of the report [ and

(c) shall notify the persons mentioned in sub-paragraph (5) of its determination under paragraph (a) and of any action taken by it under paragraph (b).]

….

(6) On receipt of the report or (as the case may be) copy, the appropriate authority shall also—

(a) in accordance with regulations under section 50 or 51 of the 1996 Act, determine—

(i) whether any person to whose conduct the investigation related has a case to answer in respect of misconduct or gross misconduct or has no case to answer, and

(ii) what action (if any) the authority is required to, or will in its discretion, take in respect of the matters dealt with in the report, and

(b) determine what other action (if any) the authority will in its discretion take in respect of those matters.

(7) On the making of the determinations under sub-paragraph (6) the appropriate authority shall give a notification—

(a) in the case of a complaint, to the complainant and to every person entitled to be kept properly informed in relation to the complaint under section 21; and

(b) in the case of a recordable conduct matter, to every person entitled to be kept properly informed in relation to that matter under that section.

(8) The notification required by sub-paragraph (7) is one setting out—

(a) the findings of the report;

(b) the determinations the authority has made under sub-paragraph (6);

(d) the complainant's right of appeal under paragraph 25."

Paragraph 25 then contains appeal provisions. It was common ground before us that, there being no complainant as such, those appeal provisions did not apply in the circumstances of the present case.

17. Overall, therefore, paragraph 15 permits only four forms of investigation; and it is the duty of the IPCC to determine the form which the investigation should take. Those four forms of investigation have significant differences. For present purposes the most important is this. Where – as here – there is a supervised investigation, the investigation is conducted under the supervision of the IPCC. But whilst the IPCC can make recommendations and requirements as to the conduct of the investigation, it is not entitled to direct the appropriate authority to initiate misconduct proceedings against the officer concerned. In the case of a managed investigation, however, the IPCC does have the power to direct the appropriate authority to initiate such proceedings: and, of course, the IPCC may itself cause such proceedings to be initiated if it has undertaken its own investigation.

(b) The 2012 Regulations

18. As contemplated by Schedule 3, regulations have been made by the Secretary of State. They are currently contained in the 2012 Regulations.
19. Regulation 7 relates to the recording and reference of conduct matters. Specified matters, amongst others, include "conduct whose gravity or other exceptional circumstances make it appropriate to record the matter in which the conduct is involved".
20. Regulation 20 is of importance in the present case. It relates to reports of investigation. It provides as follows:

"20. Report of investigation

For the purposes of paragraph 22(7) of Schedule 3 to the 2002 Act (final reports on investigations) on completion of an investigation the investigator's report shall –

(a) provide an accurate summary of the evidence;

(b) attach or refer to any relevant documents; and

(c) indicate the investigator's opinion as to whether there is a case to answer in respect of misconduct or gross misconduct or whether there is no case to answer."

21. Regulation 33 permits the delegation of powers and duties by a chief officer to another police officer in the circumstances there set out.

(c) Statutory Guidance

22. In addition, Statutory Guidance as to the handling of complaints has been issued by the IPCC, most recently in 2013. The IPCC was empowered to issue such Guidance under s.22 of the 2002 Act. It is a lengthy document.
23. Section 9 of the Guidance gives detailed guidance as to investigations. Section 11 relates to concluding the investigation. Amongst other things, this is said:

"11.1 This section deals with the investigation report. It covers:

• what the report should contain

• how the report should be written

• the action that an appropriate authority should take once a report has been received.

….

11.3 In a local or supervised investigation, the report is written by the investigator appointed by the appropriate authority. The findings and conclusions contained in the report are therefore those of the investigator.

…

11.6 The investigation report is the main source of information and explanation for the complainant or interested person. The CPS, appropriate authority and the IPCC may also rely on the report to guide them through the evidence. At the end of an investigation of a complaint subject to special requirements or a recordable conduct matter into the actions of a police officer or special constable, the investigator's report must:

i. provide an accurate summary of the evidence

ii. attach or refer to any relevant documents; and

iii. indicate the investigator's opinion as to whether there is a case to answer in respect of misconduct or gross misconduct or whether there is no case to answer.

…..

11.10 The IPCC expects all reports to be objective and evidence-based. In addition to the matters above, where they apply, reports should contain only relevant information and:

• explain what the complaint, conduct or DSI matter is about

• include the terms of reference, if any, for the investigation

• give a clear account of the evidence gathered

• show that the investigation has met the objectives set for it in the terms of reference or otherwise

• provide clearly reasoned conclusions based on the evidence

• highlight any learning opportunities for either an individual or the organisation, where appropriate, even where no allegation is substantiated

• be written in plain language free of technical jargon.

….

11.23 It is for the appropriate authority (in a local or supervised investigation) or the IPCC (in a managed investigation) to decide whether to uphold a complaint. Complaints may also be upheld as part of determining an appeal from a relevant finding of a local or supervised investigation – see section 13.

11.24 Where there is a difference between the conclusion of the investigator and the decision reached by the appropriate authority or the IPCC, the reasons for this should be noted in the rationale for the final decision. The decision(s) of the appropriate authority or the IPCC should, if possible, be communicated to the complainant and any interested person.

….

11.28 The report should explain the reasons supporting the conclusions and why there is a case to answer. There is no requirement to indicate the precise breach of the Standards of Professional Behaviour for which there is a case to answer."

24. Section 12 of the Guidance relates to action after the investigation. That reiterates that it is for the appropriate authority to make its own determination and that it should give a "clear explanation" of what has happened. That, of course, reinforces the scheme of the 2002 Act and of the 2012 Regulations: the Investigating Officer in a supervised investigation expresses his opinion on the conclusion of his investigation and it is then for the appropriate authority to make its own determination.

Factual background

25. The facts which caused these complex provisions to become engaged can be summarised in this way.
26. Mr Andrew Mitchell, MP for Sutton Coldfield and then Government Chief Whip, was seeking to make his way out of Downing Street with his bicycle in the late evening of 19 September 2012. There were police officers at the gates who, it was said, did not readily facilitate his departure. He is alleged to have said in the course of discussions with one of the officers (although it is much disputed): "Best you learn your fucking place…you're fucking plebs". This version of what was said was speedily relayed through police sources to a national newspaper and thereafter received great publicity. The sentiments expressed by him (if correctly described) were described as "politically toxic". This was, moreover, said at a time when the West Midlands branch of the Police Federation, with others, was pursuing a campaign against cuts to the police budget and proposed changes to pay and conditions. It seems that elements within the Police Federation were anxious to seek to exploit what had allegedly been said by Mr Mitchell, for political and negotiating advantage. Members called for Mr Mitchell's resignation. Further, police officers were, for example, photographed in public at meetings wearing T-shirts bearing the slogan "PC Pleb".
27. Mr Mitchell, while accepting that he had used bad language, did not accept that he had used the words attributed to him: in particular, the word "plebs". The stated view of some at the time, however, was that Mr Mitchell had not been forthcoming as to precisely what, according to him, he actually had said.
28. On 12 October 2012 Mr Mitchell was invited to a meeting by the Chair of the West Midlands branch of the Police Federation. The claimants attended as Federation representatives. Mr Mitchell apparently understood that the meeting was to involve a private discussion regarding both the Downing Street incident and wider issues of concern to the Federation. The meeting was held in offices in Sutton Coldfield, which was part of the West Midlands police area and which also, of course, was within Mr Mitchell's own constituency. It became known to the media, who attended outside.
29. In the event, an audio recording of the meeting was made (covertly) by a press officer who was present. It seems that during the meeting the claimants focused their questioning on the Downing Street incident. The meeting then ended. When the claimants came outside, they immediately addressed the waiting media. Inspector Mackaill was the main spokesman, accompanied by Detective Sergeant Hinton and Sergeant Jones. What they stated was (predictably) televised and aired on the evening news and received wide publicity; and the meeting was further discussed by each of them in other subsequent interviews. Inspector Mackaill stated at the time his view that Mr Mitchell had "no option" but to resign and that he thought Mr Mitchell's position was "untenable". He described Mr Mitchell as "continuing to refuse to elaborate on what happened". Subsequently, Detective Sergeant Hinton was to say of Mr Mitchell: "[he] has come out with what he has not said but he is not saying what he did say and that has caused an integrity issue". In a later interview he said that he thought Mr Mitchell should resign on the basis that he was still refusing to identify what he had said during the Downing Street incident.
30. On 19 October 2012 Mr Mitchell did resign as Government Chief Whip.
31. The accuracy of what the claimants had asserted was called into question by a television documentary broadcast on 18 December 2012. That revealed the existence of the recording made of the meeting. The transcript of that recording indicated Mr Mitchell as having said that the words he had used were "I thought you lot were supposed to fucking help us" and as having denied – saying that he gave his word on this – using the word "plebs" or "learn your fucking place". It also emerged that the claimants seemed actually to be acknowledging during the meeting that Mr Mitchell had gone beyond what he had previously said to the media in this regard, albeit in places Mr Mitchell had apparently said at the meeting that he was saying very little that was new.
32. It was this that gave rise to the investigation. This court, of course, has not been asked to assess for itself the implications of just what had happened nor have we viewed, or been asked to view, the various media interviews given by the claimants. But the following possible scenarios, as it seems to me, could be said to arise: (1) The claimants had, in what they said to the media, accurately summarised the effect of the meeting. (2) The claimants had inaccurately summarised the effect of the meeting. If so, that required considering whether such inaccuracy was (a) deliberate, the contents of the meeting being falsely represented to the media for perceived political advantage; or (b) inadvertent. (3) The claimants' comments about the meeting were taken out of context or were ambiguous. If so, that required considering whether any ambiguity was (a) calculated artifice or (b) inadvertent.
33. The matter was in due course referred by each appropriate authority of its own motion to the IPCC. It is clear that the respective Chief Constables were by no means either inviting or wanting an investigation into the matter undertaken by themselves. On the contrary, they were looking for an independent investigation by the IPCC itself.
34. In the event, and contrary to the preferences of the respective police forces, this did not happen: notwithstanding that one perhaps might have expected such an outcome given the high profile of the matter and the degree of public interest generated. Instead, the IPCC saw fit, on 28 January 2013, to direct a supervised investigation. Explanations have since been given for that decision by the IPCC. These explanations include, but are not limited to, the nowadays almost inevitable reference by any public body subject to criticism to "lack of resources". The various explanations were, at all events, themselves the subject of strong criticism by Mr Davies in his written argument presented to us. But in my view it matters not for present purposes. The decision, for better or worse, had been made. What counts for present purposes is the consequence of a supervised investigation being the form of investigation determined at that stage.
35. CI Reakes-Williams, recently appointed Head of the Professional Standards Department of the West Mercia Police, was appointed as the Investigating Officer with regard to all three conduct matters, which were combined. He was assisted by Temporary Inspector Smith and, no doubt, other support staff.
36. It is right to place on record that all parties before us were agreed that the investigation of CI Reakes-Williams prior to the issuing of any reports was impartial, thorough and fair.
37. Since the investigation was a supervised investigation, an officer of the IPCC had been appointed to supervise it. That was Mr Bimson, a deputy senior investigator with the IPCC. He kept a workbook of the various meetings and discussions in this regard. He had a considerable amount of contact with CI Reakes-Williams as to the progress of investigation: albeit (as Mr Bimson makes clear in his witness statement of 30 January 2014) he had no direction or control over it of the kind he would have had with a managed investigation. Further, Mr Bimson regularly updated Ms Glass.
38. On 10 July 2013 Mr Bimson was provided, at a meeting with CI Reakes-Williams and Inspector Smith, with a draft report. That recorded a difference of views between Inspector Smith and CI Reakes-Williams. The former thought that there was no case to answer; the latter thought that there was a case to answer on misconduct (although not gross misconduct). On advice, Mr Bimson took the view that the IPCC could not at this stage intervene in this supervised investigation simply because it may disagree with the proposed conclusion.
39. The West Midlands Police (by DCI Doyle of their Professional Standards Department) were at this stage pressing to see the final report. Mr Bimson says in his witness statement that he had advised DCI Doyle that the force "could be updated on the investigation but not regarding the conclusions until the report is seen by the IPCC and finalised". On 26 July DCI Doyle had informed Mr Bimson by email that she was due to meet CI Reakes-Williams and DCC Chesterman on 1 August 2013 "so that an update can be provided to me in respect of our officer Chris Jones". On 26 July 2013 Mr Bimson sent an email to CI Reakes-Williams (with a copy to DCI Doyle). That email read as follows in the relevant respects:

"Jerry,

I have spoken with Deb Doyle and I have agreed the following with her:

1. At the meeting with you, she will be provided with an update on the investigation as a whole, to include the initial allegations and what investigation has taken place around the allegations.

2. She is aware of the content of the Regs served on Chris Jones, and I am happy for her to be provided with an update on his response in interview to those allegations.

3. The Final Report will not be shared at this stage and the update should only be up to the conclusions that are drawn. The level of misconduct being considered in the conclusions can be discussed, but there needs to be some care with this, as the Final Report has not yet been seen by the IPCC and the conclusions and level of misconduct can be subject to change.

You can see that Deb has agreed that any information passed to her will be on a confidential basis."

40. On 26 July 2013 Mr Bimson provided a copy of the report, as it was then drafted, to Ms Glass ("Version A"). She was, on receipt of it, most unhappy. The report indicated the opinion of Inspector Smith that there was no case to answer and the addendum opinion of CI Reakes-Williams that were was a case to answer of misconduct (but not gross misconduct). Ms Glass did not agree at all with either opinion; but she considered that there was nothing that the IPCC could then do. She said in an internal memorandum that she had been "extremely concerned" about the conclusions until she read the addendum of CI Reakes-Williams, concluding there was a case to answer on misconduct. She considered, further, that all this was an "honesty and integrity issue" and she did not see what did not make it a case to answer on gross misconduct. As she there put it: "The conduct is provable and any issues of mitigation should be for a panel to consider".
41. Version A very fully reviewed the background evidence and the results of the various enquiries. It noted that Mr Mitchell and the claimants had "conflicting views on the true nature of the account" given at the meeting in Sutton Coldfield and the accuracy of the media interviews. It was then stated as a conclusion: "The IO [in fact referring to Inspector Smith] does not consider the Federation representatives deliberately lied…and on the balance of probabilities there is no case to answer for gross misconduct". It among other things also said:

"Despite the other factors, these considerations ultimately come down to whether the officers honestly believed that Mr Mitchell did not provide a full account to them during the meeting. Mr Mitchell believes that he did. The officers believe otherwise. On the balance of probabilities there is no case to answer for misconduct. There is learning for the officers and police federation however."

42. CI Reakes-Williams appended his own conclusions. He agreed that the conduct did not meet the threshold of gross misconduct. He then said this on misconduct:

"I have already stated that Mr MITCHELL later provided more detail than he did to the Officers at the meeting on 12th October. However, I would make the following comments in support of my view about a case to answer for misconduct, bearing in mind the points from the Standards of Professional Behaviour listed above.

1. Why, if he was not satisfied that Mr MITCHELL had given a full account, was Sergeant HINTON ready to "move on"? (Page 6 of the meeting transcript) This surely implies that he was happy with, or at least accepted, the explanation provided.

2. Why did three experienced police officers not press Mr MITCHELL for the full explanation they wanted during the meeting? He gave an answer, but they do not go on to indicate that they are not satisfied that he has given a full account.

3. Sergeant JONES does not challenge Mr MITCHELL when the latter says "You asked me in good faith what I said and I told you" ...Page 11).

4. Sergeant HINTON also says "….I understand that you are saying what you said now….." (page 18) and "I appreciate your candour…." (page 19). These statements are difficult to align with later statements to the press that claim that Mr MITCHELL did not tell them what he had said.

5. I cannot see how the Officers can claim that Mr MITCHELL "refused" to tell them what he said, when, as outlined above, they did not seek clarification from him during the meeting. Indeed, they appear to have accepted that he had given them his account.

6. I think that an ordinary member of the public, listening to the Officers speaking to the media after the meeting, would have interpreted their words as meaning that Mr MITCHELL would not give any account of what occurred in Downing Street on 19th September 2012. This is clearly not the case.

7. The Officers have therefore given an account of the meeting to the media that was inaccurate and misleading and contrary to the elements of the Standard of Professional Behaviour listed above.

What I do not see from the information gained through the investigation is a malicious attempt to deliberately misrepresent what took place at the meeting. It seems to me that it was more a case of being poorly prepared, badly advised and inexperienced in dealing with such intense media scrutiny. The Officers were somewhat "caught in the headlights", coming straight out of the meeting to face the assembled media without taking any time to discuss what had taken place between themselves and to agree a reasoned, balanced and accurate response.

There is an element of recklessness here because it is inconceivable to me that the Officers would not have been aware that the media were gathered and would have wanted an account to go out on the 6 o'clock news.

I have considered whether ALL of the officers have a case to answer. Although it was Inspector MacKaill who acted as the main spokesman after the meeting, it is clear that all the Officers spoke to the media either immediately after the meeting or subsequently, and all gave the same message. In interview, they have all stated their agreement with the information given to the media. In my view, this makes them all jointly responsible."

On any view, as I see it, these points and this reasoning of CI Reakes-Williams deserved careful consideration.

43. On 31 July 2013 Mr Bimson had a further discussion with CI Reakes-Williams and Inspector Smith. There was a proposal by him that the report should have only one set of conclusions; and it was suggested that CI Reakes-Williams should speak to his legal department and Deputy Chief Constable.
44. In the event what happened was this. There was a meeting on 1 August 2013 attended by CI Reakes-Williams and Inspector Smith; Deputy Chief Constable Chesterman of West Mercia Police as delegated appropriate authority; Deputy Chief Constable Brunton of Warwickshire Police as delegated appropriate authority; and DCI Doyle of West Midlands Police. As to the presence of the latter (which had been foreshadowed by her earlier email to Mr Bimson), it has since been explained in the letter of 7 March 2014 that DCI Doyle did not attend on behalf of the appropriate authority for West Midlands Police as such; and she had not discussed such meeting with Assistant Chief Constable Cann, the delegated appropriate authority for West Midlands Police, who it seems was not made aware of the meeting. Also present was a solicitor for the West Mercia Police.
45. At this meeting there was produced a further version of the draft report. It had this major difference from the version (Version A) most recently provided to Mr Bimson on 26 July 2013. The difference was that there had been entirely removed the stated opinions of both Inspector Smith and CI Reakes-Williams. It seems that CI Reakes-Williams had understood that this was in accordance with what Mr Bimson had advised: if so, there was (albeit entirely in good faith) a misunderstanding. At all events, no opinions were contained in this version of the report so provided to the meeting ("Version B"). Version B had not itself been provided to the IPCC.
46. The evidence indicates that Inspector Smith and CI Reakes-Williams orally stated at the meeting their differing conclusions. However, the evidence further indicates that CI Reakes-Williams simply stated his concluded opinion (namely that there was a case to answer on misconduct) without stating the reasons for it. The evidence also shows that DCC Chesterman and DCC Brunton were not themselves aware of Version A.
47. No minute of the meeting of 1 August 2013, it seems, was kept. Subsequent evidence indicates, however, that, amongst other things, all present listened to the tape of the meeting at Sutton Coldfield between Mr Mitchell and the claimants and also viewed a recording of the press conference held immediately thereafter. According to the witness statement of DCC Chesterman filed in these present proceedings, CI Reakes-Williams was saying that the IPCC wanted the appropriate authorities to decide which of the two competing views (viz. of himself and of Inspector Smith) was supported: which again, on Mr Bimson's evidence, was a misunderstanding of what had been proposed.
48. Subsequent events showed that CI Reakes-Williams considered that it was now for the appropriate authorities to make their decision on whether or not there was a case to answer. DCC Chesterman and DCC Brunton considered the matter, having available to them what had eventuated at the meeting of 1 August 2013, a copy of Version B and other relevant documents. The following day, 2 August 2013, they each, as appropriate authorities, separately determined by way of file note that, so far as concerned Inspector Mackaill (West Mercia Police) and Detective Sergeant Hinton (Warwickshire Police) respectively, there was no case to answer. They exchanged their determinations. They also stated their view "for the record" that there was no case to answer for Sergeant Jones (West Midlands Police) either. CI Reakes-Williams was notified accordingly.
49. Having been so notified, CI Reakes-Williams then redrafted the report. This resulted in a further version ("Version C") produced on 12 August 2013. He was later to explain that so far as he was concerned DCC Chesterman and DCC Brunton had now made their determinations, that was the decision and that therefore was what went into the final report. He had made his own opinion known, it had been rejected and that was effectively the end of the matter. He considered that that reflected his understanding of the IPCC's "direction" that there should be only one final opinion in the report.
50. At all events, that version of the report signed both by Inspector Smith and by CI Reakes-Williams – that is, Version C – was sent to the IPCC on 12 August 2013. It was also sent to the three appropriate authorities. It now contained the conclusion that there was no case to answer. Identified factors were these:

"1. The account given by Mr MITCHELL comes at the beginning of the meeting.

2. The meeting lasted 45 minutes and the officers had no opportunity to review what had been said prior to the press interviews.

3. The interviews were broadcast live by the national media and the officers would undoubtedly have been under a degree of pressure.

4. The phrase, "refused to tell us what he did say" was initially used by Inspector MACKAILL in response to a direct question by a reporter.

5. Some of the statements made by Mr MITCHELL towards the end of the meeting tend to indicate that he has not told the officers anything new during the meeting.

6. The officers were aware that there was a Conservative Party press officer making notes during the meeting.

7. Mr MITCHELL did give a more detailed account to the media of the events in Downing Street subsequent to the meeting.

8. The phrases used by the officers should be viewed in their full context and not as isolated comments.

9. Calling for a Government Minister to resign is a serious matter and it should be expected that the rationale for doing so should be clear and unambiguous.

The IO considers that although some of the phraseology used by the officers was not totally correct, this has to be seen in the full context of the message they were trying to deliver. Focusing on individual phrases does not fully reflect the underlying conduct of the officers at the time. For these reasons, and on the balance of probabilities, the IO does not consider that the officers have a case to answer for misconduct.

The IO does consider, however, that there is learning for the officers and the Police Federation however."

51. In subsequent evidence CI Reakes-Williams has made it clear that the conclusion expressed in Version C of the report did not reflect his own opinion. His opinion had all along remained that there was a case to answer on misconduct for all three claimants.
52. The determination of ACC Cann as appropriate authority for the West Midlands Police, to the effect that there was no case to answer with regard to Sergeant Jones, was made on 1 October 2013. The subsequent letter of 7 March 2014 from the West Midlands Police makes clear that the only report considered by ACC Cann was Version C, as being the final report. (ACC Cann had not himself seen Version B; and still none of the appropriate authorities, of course, had seen Version A.) The letter also explains that ACC Cann was not himself aware of the content of the oral discussions at the meeting of 1 August 2013.
53. On 15 August 2013 CI Reakes-Williams had sent Mr Mitchell a copy of Version C. In doing so, he described this as a copy of "the final [underlined] report, the one agreed by the three appropriate authorities". He went on, among other things, to add "I think you know my views about the actions of some of my colleagues".
54. So far as the IPCC was concerned, it knew nothing of Version B when it received Version C on 12 August 2013. Ms Glass was exceptionally unhappy at the outcome. But she considered that there was nothing that she or the IPCC could do to alter it. Nevertheless she made her views clear in a letter sent by her, as Deputy Chair of the IPCC, to DCC Chesterman on 6 September 2013. She maintained her view that a case to answer of gross misconduct was made out. She among other things said: "In my view, the evidence strongly suggests that all three officers gave a false account of the meeting… in pursuit of a wider agenda. This is an issue of honesty and integrity and/or discreditable conduct…" On 3 October 2013 DCC Chesterman responded, rebutting that viewpoint.
55. On 15 October 2013 the Chief Constables of West Mercia Police and Warwickshire Police issued a joint statement. They pointed out that none of the disputes that had by now blown up would have happened had the IPCC conducted its own investigation. Having so stated, they amongst other things said:

"We also both agreed with the recommendation [sic] that there was no case for any of the officers to answer."

56. On the same date a press release was issued on behalf of the IPCC. This was headed: "IPCC disagree with findings of West Mercia investigation into conduct of police". The release then quotes statements of Ms Glass at length. She made clear her disagreement with the determinations of the appropriate authorities and her own view that the evidence was such that a panel should determine whether the claimants had given "a false account of the meeting in a deliberate attempt to support their MPS colleagues and to discredit Mr Mitchell in pursuit of a wider agenda". She suggested that: "Their motive seems plain…the account that he provided did not fit with their agenda". She concluded: "I believe it is important to put my disagreement on record and to set out the evidence so that the public can judge for themselves". Mr Davies in argument criticised Ms Glass for publicising her viewpoint in this way, describing it as "frankly inappropriate".

The decision of 30 October 2013

57. On the IPCC's then understanding of the position, matters necessarily rested there – wholly unsatisfactory though Ms Glass herself considered the position to be.
58. But in the event the whole matter had been called in for scrutiny by the House of Commons Home Affairs Select Committee in October 2013. Extensive evidence was adduced before the Committee. In the light of that, the existence of each of Versions A, B and C of the report and of the nature of the meeting of 1 August 2013 now became known to all.
59. CI Reakes-Williams was one of those to give oral evidence to the Committee. He made clear that he had always retained the opinion that there was a case to answer of misconduct. He explained his understanding of Mr Bimson's advice and as to how Version B and then Version C came to be produced. He explained the latter by saying that:

"My understanding was that "Right, that is the decision and, therefore, that is what goes in the final report. I have made my opinion know. I have made my recommendation. The senior officer has made a different decision and, therefore, that is what should go in the final report", keeping in mind the IPCC's direction that there should only be one final opinion in the report."

60. Ms Glass also gave evidence to the Committee. She said that she was "absolutely astonished" that there was no decision that there was a case to answer of gross misconduct. She said, however, that the advice she had received was that the investigation was concluded and that it would be an abuse of process for the IPCC to seek to re-determine the matter simply in order to rewrite the conclusions. She also made clear that the IPCC had never previously been made aware of Version B or just what had happened at the meeting of 1 August 2013.
61. Each of the claimants gave evidence before the Committee. We were told, in fact, that two of the claimants are now subject to a further investigation by the IPCC in respect of the veracity of some of their answers. Mr Basu suggested that that course might involve an infringement of Article 9 of the Bill of Rights Act 1689. I need express no view on that for present purposes. All before us were agreed, however, that this court could study the transcripts of the evidence given to the Committee placed in the bundles before us for the purpose of these present proceedings.
62. In the light of what had emerged before the Committee the IPCC reconsidered its position. Until then it had thought that it had no basis for interfering with the supervised investigation and subsequent determinations and that it had no basis for exercising its powers under paragraph 15(5) of Schedule 3 to the 2002 Act. It now decided, on reconsideration, that it could. The decision was made in writing on 30 October 2013 by Ms Glass as Deputy Chair.
63. The decision set out the background in detail. It noted that the IPCC had not previously been made aware of Version B or the subsequent events. It further noted that, notwithstanding the stated conclusion in Version C, CI Reakes-Williams had since made clear that his opinion had in fact remained that all three claimants had a case to answer for misconduct. Ms Glass said this:

"When I received the final report and after having taken advice, I determined that I was unable to reopen and re-determine the investigation, which I considered to be entirely unsatisfactory, simply because I did not agree with the conclusions, as this would be an abuse of process. It is indeed the case that paragraph 15(5) states an MOI can be re-determined at any time but logically this can only apply when an investigation is open."

She went on to identify a number of procedural irregularities which she said had occurred. She then said this:

"Therefore, although I had previously considered that the investigation was closed, it is now apparent that it was never completed because a final report that adhered to the requirements of Regulation 20 was not written; the investigation remained (and still remains) open. I consider that to remedy the irregularities and conclude the investigation a final report now needs to be produced that accords with the statutory regime because the purported final report is so flawed and so at odds with the mandatory requirement of Regulation 20 as to be null and void. Because of this, any decision making that followed by the three appropriate authorities was also void.

In light of the fact that the investigation is still open it has to be completed. I have therefore considered, as requested by the HASC, whether to re-determine the mode of investigation for this purpose. I consider that the seriousness of the matters under consideration remain unchanged. However, taking account of the public interest, I am of the view that circumstances have changed to such an extent as to necessitate re-determining the mode of investigation to independent."

She went on to say that she did not think that a managed investigation would meet public concerns or expectations. In that regard she said this:

"I am able to make a determination of managed but do not think this would meet the clear concerns of the public, albeit that I could seek to secure a managed investigation with an independent police IO. However, I do not believe that the distinction would be sufficiently clear to the public in general; the public would now expect the IPCC to conduct the investigation itself.

Therefore, taking account of all the above factors, I consider that the only mode of investigation that will serve the public interest and accord with my obligations under section 10 of the PRA to secure public confidence in the system for investigating police conduct matters (and complaints and death or serious injury matters) is to redetermine the MOI to independent."

On 3 November 2013 Ms Glass issued a press release further explaining her decision. She concluded it by saying: "In the interest of fairness to all parties, no-one involved in the original investigation will be involved in the independent investigation that will now take place". Subsequently, that decision having been made, new terms of reference were sent out by the IPCC on 13 November 2013.

64. It is that determination of 30 October 2013 which the claimants now challenge.

Discussion

(a) Procedural irregularities

65. There is no question, on the evidence before us, of bad faith here; and none is asserted. But through a series of misunderstandings and lack of true appreciation of the requirements of Schedule 3 to the 2002 Act and of the 2012 Regulations (read with the Statutory Guidance) there was here, in my view, a series of errors and irregularities that was simply lamentable. I in fact would not disagree with the statement of the Chair of the Home Office Committee when he described what happened here as seeming to be very much a "car crash". Nor would I disagree with previous statements of Ms Glass to the effect that there had been a catalogue of "fundamental" irregularities.
66. Mr Davies sought to describe the various irregularities as, in effect, mere procedural technicalities. As the argument before us wore on his submissions became more and more muted in this regard. That is not surprising. At all events, as I see it, the irregularities, when taken together, were 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.
67. The first error was that Version A was drafted so as to present (at length) the opinion of Inspector Smith that there was no case to answer as though Inspector Smith was the, or an, Investigating Officer: albeit with an addendum to the contrary (on misconduct) from CI Reakes-Williams as purported "Senior Investigating Officer". This was contrary to the statutory scheme. Schedule 3 of the 2002 Act and the 2012 Regulations indicate that only one person is to be appointed the Investigating Officer. Mr Davies accepted that.
68. I can see no objection to an Investigating Officer assembling a team and having regard to their views. If these views are cogent it indeed may be appropriate for these views to be dealt with in the report (even if they are not required to be attributed to any named individual). But that is quite different from representing that a named individual expressing such views is an Investigating Officer when he is not. That might seem to be a matter of, ultimately, no great substance given that CI Reakes-Williams' own opinion was in fact expressed in Version A. But it becomes of much greater substance by the time of the meeting of 1 August 2013 when Version B, with no stated conclusion, was produced. For, when presented (orally) with the competing conclusions of Inspector Smith and CI Reakes-Williams, at least DCC Brunton (the appropriate authority for Warwickshire Police), as he has since frankly stated, at the time believed that it was Inspector Smith who was the Investigating Officer; he thought that CI Reakes-Williams was present in his role as Head of Professional Standards. So DCC Brunton ascribed the opinion (orally expressed) that there was no case to answer, either of gross misconduct or misconduct, to an individual who was not in fact the Investigating Officer but who was understood by him to be the Investigating Officer.
69. The next point is that it is evident from a proper reading of the statutory provisions that the report must be in writing. The practical reasons for that are obvious. Mr Davies, in his written argument, maintained that such a report could, at least in part, be expressed orally. There is no basis for that to be found either in Schedule 3 or in the 2012 Regulations or in the Statutory Guidance. Indeed, the various provisions are plainly to the contrary effect. To the extent, therefore, that Mr Davies sought to rely on the fact that CI Reakes-Williams (as did Inspector Smith) stated his opinion orally that does not suffice. Moreover, views of such a kind as recorded in writing are plainly the more capable of proper consideration thereafter than views expressed orally: which may be misunderstood or misrecollected (especially where, as here, no minutes of the meeting were kept).
70. Yet further, as DCC Chesterman explained in his witness statement filed in these proceedings, CI Reakes-Williams at the meeting had indicated the competing conclusions of Inspector Smith and himself but without giving the reasons. He recalled CI Reakes-Williams saying:

"The IPCC wanted the appropriate authorities to clarify which conclusion was supported. CI Reakes-Williams did not elaborate any further than this and I assumed that this was because he had been instructed by the IPCC not to share the detail and rationale behind the conclusions."

So neither DCC Chesterman nor DCC Brunton knew of CI Reakes-Williams' actual reasons for his conclusion: reasons of the Investigating Officer which, on any view, as I have said, merited careful consideration. That was contrary both to what is implicit in Schedule 3 to the 2002 Act and the 2012 Regulations and to what is explicit in section 11 of the Statutory Guidance.

71. All this, in my judgment, signifies the most significant and material procedural errors as having arisen.
72. In argument, we asked Mr Davies which of Versions A, B and C he was relying on as the relevant report. The point was of importance, given that the power and the duty of the appropriate authorities to make a determination under paragraph 24 of Schedule 3 to the 2002 Act is only triggered when a copy of the report is sent to it in accordance with paragraph 22. His answer, as I understood it, was: Version B, coupled with the oral explanations given at the meeting of 1 August 2013, so far as concerned West Mercia Police and Warwickshire Police (each of whom issued their determinations the following day); and Version C so far as West Midlands Police were concerned, who issued their determination on 1 October 2013.
73. This is not tenable.
74. Version A – which at least contained the opinion of CI Reakes-Williams together with his reasons therefor, even if it also (wrongly) contained the opinion of Inspector Smith as purported Investigating Officer – could not be relied on: if only because it was provided to none of the appropriate authorities. In truth, its effective status at the time was as a draft. Version B could not be relied upon either: because it too had the effective status of a draft and moreover contained no statement of opinion of the Investigating Officer at all. And to the extent that CI Reakes-Williams orally supplemented it with his (unelaborated) statement of conclusion that cannot suffice, for the reasons given above. As to Version C, that post-dated the determinations of the West Mercia Police and Warwickshire Police and so could not at the time of their determinations have been relied upon by them. That, however, was the version of the report sent to and relied upon by the ACC Cann of West Midlands Police, as appropriate authority: as he has confirmed. But that version of the report was itself also fundamentally flawed: indeed, fundamentally misleading. For it expressed as CI Reakes-Williams' concluded opinion that there was no case to answer; whereas CI Reakes-Williams' true opinion was that there was a case to answer of misconduct. All that that report (Version C) had done, in this regard, was in reality to parrot the previously expressed opinions of the other two appropriate authorities.
75. In my view, looking at matters overall, the resulting position is that no report compliant with the statutory scheme was ever produced. This was not a case of a report being produced which can properly be described as a report under the 2002 Act and the 2012 Regulations, even if it was a flawed report. This, in my judgement, was a case where there was no true final report at all. In consequence, for the purposes of paragraph 24 of Schedule 3, the appropriate authorities had never received a report as required as a precondition for determining what action to take.
76. In saying that, however, I would not necessarily associate myself with one argument of Mr Owen. This was to the effect that a report in all respects satisfying Regulation 20 of the 2012 Regulations was a "jurisdictional prerequisite" for a valid determination by an appropriate authority. That, I think, goes too far. Indeed, it would suggest that even a minor infraction of Regulation 20(a) or (b), for example, could operate entirely to vitiate a subsequent determination. My assessment on this aspect of the case is based on the much wider conclusion to be drawn from the sheer number and significance of the procedural errors which occurred and which, in causative terms, were profound in their consequences: thereby leading to no valid report ever being produced.
77. In this regard, I feel bound to add that I think that it was unwise and unfortunate that the meeting of 1 August 2013 was ever permitted to take place as it did. For the Investigating Officer to discuss his proposed report and his proposed conclusions with the appropriate authorities (or some of them) at so delicate a stage was fraught with the risk of misunderstanding; and had the potential to compromise – as it in fact did – the independence of the subsequent purportedly final report. It is, at any rate, evident that CI Reakes-Williams misunderstood what he was being advised by Mr Bimson to do and misunderstood the limits of what he might do. In fairness to CI Reakes-Williams, the email of Mr Bimson of 26 July 2013 had at least – unfortunately – not discouraged such a meeting and indeed had encouraged CI Reakes-Williams to believe that "the level of misconduct being considered in the conclusions could be discussed". The upshot, at all events, was that his own opinion with reasons therefor, as the Investigating Officer, were never properly given at the time to any of the appropriate authorities. Moreover, the determinations of the two appropriate authorities who had attended that meeting then caused CI Reakes-Williams to produce Version C (as purporting to be his final report and presented as such to the IPCC, Mr Mitchell and the West Midlands Police, as well as – albeit after the event of their determinations – to the other two police forces) in a way that positively misrepresented his own true opinion. Mr Owen thus was entitled to submit that CI Reakes-Williams' investigative independence had become compromised. Indeed, Mr Mitchell, when subsequently made aware (in some respects) of what had happened, complained of there having been "tampering" with the investigation. That is perhaps not quite the appropriate word, in the light of the circumstances as now established. But it remains undeniable that the purported final report (Version C) was crucially influenced by the meeting of 1 August 2013 and by the subsequent two purported determinations of the appropriate authorities of Warwickshire Police and West Mercia Police of 2 August 2013.

(b) Consequences of the irregularities

78. What are the consequences of all these procedural irregularities?
79. In my view, as may be gathered, they are so wholesale and so fundamental that the consequence is that no true final report was ever submitted and the subsequent determinations of the appropriate authorities are as a result invalid and of no effect. Although the IPCC had not initially put in a cross-application seeking declaratory relief in this regard, it had foreshadowed it in its skeleton argument and grounds of opposition. After some prompting by the court during the hearing, Mr Owen produced to us on the second day of the hearing such an application, seeking the relevant relief. Since – as was conceded – no prejudice was occasioned to the claimants or Interested Parties by the lateness in the production of this document, this court ruled at the hearing, in its discretion, that the IPCC should be permitted formally to cross-claim such relief.
80. Mr Davies, supported by Mr Basu, continued to dispute, however, that the irregularities – even if they were, on the face of it, not minor – were material as to the outcome. He did so on the basis of asserting that the appropriate authorities would have reached the same decisions anyway. He relied on the subsequent statements of the various Deputy Chief Constables to the effect that they believed they would not have reached any different view even had Version A been placed before them.
81. The Administrative Court is familiar in judicial review cases with arguments to the effect that the same decision would have inevitably been reached in a given situation even in the absence of the asserted procedural irregularity. It is generally wary of such arguments, and for good reason. In the present case, Mr Davies' submission is undermined at the outset by the acceptance of at least one of the appropriate authorities – West Mercia Police – that the matter now required re-determination. In any event, the other authorities have not, in my opinion, given a sufficiently detailed rebuttal of the reasons of CI Reakes-Williams after being made aware of them; those have a clear prima facie cogency and called for careful consideration and (if to be rejected) carefully reasoned rebuttal.
82. I need say no more on this. I am quite clear that the granting of relief in favour of the IPCC should not be withheld by reason of the assertion that the same result would inevitably have been reached anyway. I am not prepared to accept that assertion.

(c) Validity of exercise of paragraph 15(5) power

83. Mr Davies, however, then advanced a further, and broader, objection to the stance taken by the IPCC. He said that, in order to clothe itself with ostensible jurisdiction to re-determine the form of investigation under paragraph 15(5), the IPCC had first decided unilaterally to regard the reports and determinations as void and of no effect; and then, basing itself on that, had decided that the investigation had not after all been concluded: thereby ostensibly permitting itself to avail itself of the power to re-determine under paragraph 15(5). Mr Davies, supported by Mr Basu, said that that was wholly wrong in principle. Flawed though they may be, the reports and determinations stood, counsel said, unless and until set aside by order of the court. But, prior to its purported re-determination of 30 October 2013, the IPCC had not even sought, let alone obtained, the appropriate relief from the court in this regard. Accordingly, so it was submitted, the power under paragraph 15(5) was not available to be exercised on 30 October 2013: for the investigation had by then been concluded.
84. We received a lot of argument on this point and various authorities were cited to us. But ultimately, I have to say, I found the claimants' arguments on this point somewhat arid, given the particular circumstances of this case.
85. In general terms, I can see the point. It may be said that, in the ordinary way, a court order or an administrative act of a public body even if invalid, even if made without authority, even if made without jurisdiction, stands until a court makes a declaration of invalidity or a quashing order. The general position is very well summarised and lucidly discussed in Wade and Forsyth on Administrative Law (10^th ed.) at pages 250 ff. and Craig's Administrative Law (7^th ed.) at paragraphs 24-011 ff. Further, to obtain such relief a party must normally satisfy the usual requirements of timeliness and of standing; and, further, the grant of relief is ordinarily a matter for the court's discretion.
86. We were referred, among other authorities, to the well known decisions of the House of Lords in Smith v East Elloe RDC [1956] AC 736; Ridge v Baldwin [1964] AC 40; and London & Clydeside Estates Ltd v Aberdeen DC [1980] 1 WLR 182. In Lovelock v Minister of Transport (1980) 40 PCR 336, Lord Denning, in characteristic language, said this at p.345:

"Assuming that he did fail to take into account a relevant consideration, the result is that, in point of legal theory, his consent was 'void'. It was made without jurisdiction. It was a nullity. Just as if he had failed to observe the rules of natural justice. But, in point of practice, it was 'voidable'." It seems to me to be a matter of words – semantics – and that is all. I have got tired of all the discussion about 'void' and 'voidable'. The plain fact is that, even if such a decision as this is 'void' or a 'nullity', it remains in being unless and until some steps are taken before the courts to have it declared void. As Lord Radcliffe said long ago in Smith v East Elloe Rural District Council: 'It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders'. That point of view was adopted by the House of Lords in F. Hoffman-La Roche & Co. A.G. v Secretary of State for Trade & Industry by Lord Reid and Lord Morris of Borth-y-Gest.

So, even if there was anything wrong in what the Secretary of State did – even if he did fail to take into account a relevant consideration – even if there was any failure of natural justice in that or any other regard – this consent remained valid and effective for all purposes, and for people to act on it, unless and until steps were taken to call it in question. No steps were taken until the appeal was opened in this court…"

87. Mr Owen, for his part, referred us to a passage from Lord Hailsham's speech in London & Clydeside Estates (cited above) to the effect that, in a suitably "flagrant" case, an individual may ignore what has been done as invalid and "use the defect in procedure simply as a shield or defence without having taken any positive action of his own" (albeit it may be noted that Lord Hailsham went on to say that in "the great majority of cases" it may be necessary to apply to court for a declaration of the individual's rights). Observations to broadly similar effect were made by Lord Irvine, in discussing Lord Hailsham's speech, in Boddington v British Transport Police [1999] 2 AC 143 at p.157. One may query, however, the applicability of that indicated approach to the present case. For here the IPCC was, in substance, not using the asserted invalidity of the reports and the determinations simply as a defence or shield; it had, rather, purported positively to make its own assessment of the invalidity of these matters as the basis for then exercising its powers under paragraph 15(5).
88. That said, the essential reason why I regard the debate as somewhat arid is this. The fact is that the IPCC has (now) sought relief from the court and the fact is that the court necessarily has reviewed the whole matter and has judicially considered the validity of the acts in question. It seems to me to be 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) simply because the IPCC had not itself obtained an order from the court before exercising that power: when it can now be seen that the IPCC's stance was, in fact, justified. Putting it another way, I do not see why the court should not, in the circumstances of this particular case, adopt – using the erstwhile Latin legal maxim – a nunc pro tunc approach.
89. I found helpful in this regard the decision of Underhill J, as he then was, in R (Bolt) v Chief Constable of Merseyside Police [2007] EWHC 2607 (Admin), which Mr Owen drew to our attention. In that case, a disciplinary panel had found a police officer of the Merseyside Force to be in breach of the relevant code of conduct. It decided that he should be dismissed. On a review, an independent Chief Constable upheld the finding of misconduct; but he purported to set aside the sanction of dismissal and to substitute a fine of 13 days' pay. The Chief Constable of the Merseyside Police declined to accept that substituted penalty and maintained the dismissal directed by the panel. That was challenged by the claimant police officer. It was argued on his behalf that, under the applicable Regulations, the Chief Constable of Merseyside had no power himself to reject the decision of the independent Chief Constable – a point the judge upheld. It was further argued (rather as in the present case) that, unless and until the decision of the independent Chief Constable was first quashed, the Chief Constable of Merseyside had been bound to follow it and could not arrogate to himself a view that the decision was invalid: "a finding that only the court could make", as it was argued.
90. Underhill J decided that the decision of the independent Chief Constable on sanction had been unlawful: it was not one to which he could properly have come and it could not be sustained in law. As to the point raised about the entitlement of the Chief Constable of Merseyside to act as he did, Underhill J, after considering Lord Irvine's speech in Boddington, said this at paragraph 31 of his judgment:

"Whether or not it might have been better for the defendant to seek judicial review of the [independent Chief Constable's] decision I can see no real prejudice to any party in my considering its lawfulness in the present proceedings."

At paragraphs 36 and 37 he said this:

"36. Whether those reasons amount in law to a finding of irrationality or a finding that [the independent Chief Constable] misdirected himself as to the limit of his powers under the review provisions, I am satisfied that his conclusion cannot be sustained in law. In my judgment the decision of the panel should not have been overturned on a review.

37. Having reached that point, in my view it follows that I ought not to grant the relief sought. If the Defendant had followed the arguably more formally correct course of seeking a judicial review of [the independent Chief Constable's] decision that decision would have been quashed, with the result that the decision of the panel stood (subject to appeal). If I refuse relief in the circumstances which have in fact occurred substantially the same result will be achieved."

91. I see no reason not to adopt a like pragmatic approach in the circumstances of the present case.
92. Those matters, as I think, give the answer to the question of whether the IPCC was entitled to exercise the power conferred under paragraph 15(5). The whole thrust of Mr Davies' argument on this aspect of the case had been geared to the assertion that the investigation had been concluded and the determinations made; and thus that the power under paragraph 15(5) was not available, whatever the flaws in the preceding process. Since I conclude that the flaws were so material as to cause there to have been no valid and lawful final report and no valid and lawful determinations of the appropriate authorities, this argument should not and cannot succeed. Mr Davies did at one stage seek to say, by reference to the sequential nature of the statutory scheme, that the investigation itself had been concluded even if the various reports and subsequent determinations were invalid and of no effect. I do not agree: completing a (valid) report is plainly part of the process of completing the investigation. Since no valid final report ever had been completed or supplied it follows that the investigation itself had not been concluded. Accordingly, the power under paragraph 15(5) was in principle available to be exercised by the IPCC.
93. That conclusion makes it unnecessary to give a decision on Mr Owen's alternative argument. This involved a departure from the IPCC's previous stated stance. Previously, it had conceded (and as stated to the Home Affairs Committee) that the exercise of the power under paragraph 15(5) was not available if the investigation had indeed been concluded. But Mr Owen now submitted otherwise. He submitted that the words "at any time" were to be read literally: consequently, he said, the power could be exercised even after the conclusion of an investigation and after the making of a determination by an appropriate authority. In argument he was prepared, when the point was put to him, to accept that the exercise of such power at such a stage might be subject to public law requirements of reasonableness and could not, for example, be used simply to defeat a determination which the IPCC did not like (cf. cases such as R v Warwickshire County Council ex.p. Powergen plc (1998) 96 LGR 17 and R v Secretary of State for the Home Department ex.p. Danaei [1998] INLR 124). But even so, he said, here there was a change of circumstances arising since the determinations of the appropriate authorities; for it was only after the determinations were made that the IPCC had been made aware of Version B and the course of events which had occurred. Indeed, he submitted that such a scenario was precisely one reason why the words "at any time" should be so construed as to make the power available even after an investigation had been concluded and after a determination had been made by an appropriate authority.
94. The claimants and all the Interested Parties (including, on this particular issue, West Mercia Police which in other respects had broadly supported the IPCC's stance) strongly disputed this. They submitted that the power in paragraph 15(5) was, on the proper interpretation of the paragraph, only available during the currency of the investigation and not after its conclusion. They forcefully pointed to the potential wide ramifications for other cases if Mr Owen's argument were right and if paragraph 15(5) carried with it no "end stop". They further submitted that such an argument went against the whole statutory scheme. Mr Basu, in particular, pointed to the words "under this paragraph". That phrase, he submitted, incorporated a reference to sub-paragraph (2); and he submitted that that sub-paragraph was, by its terms, looking to the future (the form which the investigation should take), not to the past (the form which the investigation should have taken).
95. However, since the point does not fall for decision in this case I do not think it necessary or appropriate to express an opinion on what is not an entirely straightforward issue.

(d) Apparent Bias

96. That would seem to determine the outcome of the case. Since no valid report had ever been produced, since the investigation was incomplete and since the determinations were invalid the IPCC could, on the face of it, exercise the power available to it under paragraph 15(5). And, given the circumstances, it can be said that there seemed to be ample reason for it to do as it did.
97. This, however, leads to the final issue: which in many ways I find to be the most troublesome. It is that of apparent bias. (Mr Davies made clear that he was not asserting actual bias.)
98. It will be recalled that Ms Glass, Deputy Chair of the IPCC, had at the end of July 2013 expressed concern to Mr Bimson at the draft conclusions expressed in Version A. When, in due course, the appropriate authorities made their purported determinations she had expressed like disagreement, in strong and trenchant terms, in correspondence with the appropriate authorities. She had expressed similar sentiments to the Home Affairs Committee and also had done so in the Press Release of 15 October 2013. She thus publicly and repeatedly made her disagreement with the determinations of the appropriate authorities absolutely plain. She did so, of course, at a time when it was considered that the IPCC itself had no power to reopen the investigation or itself to direct misconduct proceedings.
99. Yet it was Ms Glass herself, on behalf of the IPCC, who on 30 October 2013 then made the determination under paragraph 15(5) to replace the form of the investigation.
100. The appropriate test, as the parties before us agreed, can be taken as that laid down by the House of Lords in Porter v McGill [2002] 2 AC 537, [2001] UKHL 67, as supplemented by the decision of the House of Lords in Lawal v Northern Spirit Limited [2003] ICR 856, [2003] UKHL 35. In summary, the test is whether a fair-minded and informed observer, having considered the given facts, would conclude that there was a real possibility that the decision-maker was biased. It has in this regard been said that the informed observer is to be taken as "neither complacent nor unduly sensitive or suspicious". Although many of the reported cases, as cited to us, relate to decisions of courts or tribunals Mr Owen accepted that the principle is capable of applying to a body such as the IPCC in its decision-making process.
101. There are some examples to be gathered from the cases of a quite strict application of the principle: see, for example, the decision in Lawal itself (cited above) and Yacoub v The Queen [2014] UKPC 22.
102. The position of two of the Interested Parties was neutral on the issue of apparent bias. Mr Beggs, for West Mercia Police, supported the IPCC's position. The claimants, however, say that, Ms Glass having expressed her views that there was a case to answer so strongly, so clearly and so persistently, it could not be right for Ms Glass herself on behalf of the IPCC then to make the paragraph 15(5) decision. Moreover, it is pointed out that she ruled out even a managed investigation – thereby, as Mr Davies submitted, potentially precluding, for example, use of CI Reakes-Williams' admittedly thorough and careful investigation (shorn of their conclusions) – with a view, it was suggested, to ensuring that the IPCC had total control in all respects of the further investigation. At least, it was submitted, that could reasonably be the perception, viewing the matter objectively.
103. I feel bound to accept that objection to the determination of 30 October 2013 on the ground of apparent bias: although it seems to me that perhaps it might also be 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 this whole matter, there was, it can be said, potentially a strong case for the exercise of the power under paragraph 15(5). At all events, the decision to exercise it could not, in my judgment, be said to be perverse or Wednesbury unreasonable or anything like that. Nevertheless, in my judgment considerations of fairness (in the public law sense), and application of the principles relating to apparent bias or predetermination, required that Ms Glass should not herself have been the maker of that decision. I feel compelled to reach the conclusion that, for that reason, the decision of 30 October 2013 must be quashed.
104. It would, however, be utterly unacceptable if matters were left there. It is plain that the investigation into the conduct of the three claimants as to whether or not there is a case to answer should be brought, one way or another, to a valid conclusion: when thus far, most regrettably, it has not been.
105. So what to do next? It was initially suggested that the matter be remitted to the appropriate authorities for their further determination. The proposal in this regard, as I understood it, would be that the report in Version A – perhaps, although not clearly stated, without Inspector Smith's stated opinions – would be presented as the Investigating Officer's report. But that suggestion simply will not do. Not only have each of the three appropriate authorities made their (invalid) determinations: they have also since asserted that they would have reached the same determination in any event, even knowing of CI Reakes-Williams' reasons (and indeed Ms Glass's views) to the contrary. Commendably, the Interested Parties in such circumstances before us did not in fact seek such an outcome; and in fairness, too, it should be recorded that Mr Davies for the claimants did not really press it either. What instead was suggested was that on any remission the matter could and would then be delegated for determination to an independent senior officer, by use of the powers conferred by Regulation 33. Thus while the ultimate determinations would still be made by "the police" (putting it generically) they would now be made by senior officers not connected with these particular police forces.
106. I am not altogether sure if the court could itself direct such an outcome. In any case, on reflection, I do not think that would be the right course for the court to take. Given the wholesale catalogue of fundamental errors which has occurred, one aspect, among others, that potentially may need to be assessed is to what extent, if at all, any part of CI Reakes-Williams' investigation or originally stated opinion can, or should, be retained. Indeed, it seems to me that it may need to be considered whether CI Reakes-Williams, if he were still to be Investigating Officer, would, given all that has happened, himself now perhaps be in a most difficult and invidious position. Overall, in my view, given the circumstances, it is essential that it be decided whether or not there should be another form of investigation. Only the IPCC has the power to decide that.
107. The claimants, however, maintain (relying again on principles of apparent bias) that the IPCC as a whole is, as it were, now tainted by Ms Glass's statements. It is said that, even if Ms Glass is no longer herself involved, the claimants themselves can now have no expectation of any decision hereafter from the IPCC other than in accordance with the opinion which Ms Glass has so publicly and so firmly expressed. The IPCC, Mr Davies said, can no longer be regarded as independent on the matter. Further, it is said that, objectively, the view of the informed and fair-minded observer would be that there was such a risk. The IPCC, on the other hand, points out that Ms Glass is no longer involved in any way with the IPCC (she now holds a very senior public position in Australia). It further points out that the new process would be undertaken by an Investigating Officer and board member (the current Deputy Chair) who had no previous involvement whatsoever in the original investigation or decision of 30 October 2013: albeit she (the current Deputy Chair) had previously been "line-managed" in her own cases by Ms Glass when she had herself been a Commissioner and obviously knew her (Ms Glass). Mr Owen in argument sought to draw an analogy – even if not an entirely precise one – with the Crown Prosecution Service. He submitted that if a particular charging decision by a particular prosecutor is set aside for bias (actual or apparent) there ordinarily could be no objection to the charging decision then being re-made by an entirely fresh prosecutor: and so here, he said.
108. My conclusion overall, having regard to the evidence and the circumstances, is that the IPCC – with these entirely fresh personnel in place – can properly be left to re-determine the matter under paragraph 15(5) and (if that be the re-determination) to manage or to conduct for itself any subsequent investigation. I do not think that, from the perspective of the informed and fair-minded observer, it would be considered that there was a real possibility that the IPCC as an entire institution may be regarded as biased by reason of Ms Glass's own previously expressed views. What this matter needs is independence, both actual and apparent; and (notwithstanding the previous and strongly expressed views of Ms Glass) I think that that can best and properly come from the IPCC itself, with the involvement of entirely new personnel. I think that to adopt such a procedure would satisfy the test laid down in Porter v McGill.

Conclusion

109. My ultimate conclusions are as follows:

i) I would declare, on the IPCC's cross-application (a) that no final report, for the purposes of paragraph 22 of Schedule 3 to the 2002 Act and Regulation 20 of the 2012 Regulations, has been prepared in the investigation; (b) that each of the three determinations of the appropriate authorities, respectively dated 2 August 2013 and 1 October 2013, is invalid and of no effect; and (c) that the investigation which is the subject matter of the claim has not (and at 30 October 2013 had not) been concluded.

ii) I would quash the decision of the IPCC of 30 October 2013 because of Ms Glass's involvement in it, and remit it to the IPCC for fresh consideration. It would then be a matter for the new decision-maker on behalf of the IPCC, having regard to all the relevant circumstances, to decide whether or not to exercise the power available under paragraph 15(5); and, if that is so decided, to determine what form the investigation is to take.

iii) If my Lord agrees with these conclusions, counsel should endeavour to agree a form of order to reflect the foregoing judgment. I would invite the parties also to agree consequential matters. If they cannot, they are to lodge written submissions on any points of disagreement.

110. Finally, I would, for myself, comment that what had been at issue here for the purpose of the investigation and determinations was whether there was a case to answer on the part of each of the claimants. I say that because some aspects of the various versions of the reports and related discussions and determinations (and indeed some aspects of the submissions to us) to my mind possibly, at some stages, showed a tendency to conflate – wrongly – the issue of whether or not there was a case to answer on gross misconduct or misconduct with the separate issue of whether or not there actually was shown to be gross misconduct or misconduct.

Mr Justice Wilkie:

111. I agree.