Mackaill & Ors, R (on the application of) v West Midlands Police & Ors

Under the statutory scheme governing police conduct investigations, an appropriate authority may determine whether there is a case to answer only after receiving a compliant final investigation report. A report must be written, identify the investigator’s opinion, and comply substantially with the statutory requirements. A series of fundamental procedural errors may mean that no valid report or determination exists.

Where the investigation remains incomplete, the IPCC may reconsider the form of investigation under paragraph 15(5) of Schedule 3 to the Police Reform Act 2002. That power must, however, be exercised by a decision-maker who is not affected by apparent bias or predetermination. The decision was therefore quashed and remitted for fresh consideration.

Three serving police officers were investigated after making media statements about a meeting with Andrew Mitchell MP concerning the Downing Street incident known as Plebgate. The IPCC initially directed a supervised investigation. Several versions of the investigator’s report were produced, containing inconsistent or absent conclusions. The appropriate authorities nevertheless determined that there was no case to answer.

After the Home Affairs Select Committee exposed the irregularities, the IPCC purported to change the investigation to an independent investigation under paragraph 15(5) of Schedule 3 to the Police Reform Act 2002. The claimants sought to quash that decision. The IPCC cross-applied for declarations that no valid final report or appropriate-authority determinations existed. The central issues were the validity of the reporting process, the availability of the paragraph 15(5) power, and apparent bias.

1. Declarations and quashing order. The court declared that no final report compliant with paragraph 22 of Schedule 3 to the Police Reform Act 2002 and regulation 20 of the Police Conduct (Complaints and Misconduct) Regulations 2012 had been prepared. The three appropriate-authority determinations were invalid and of no effect, and the investigation had not been concluded. The IPCC’s decision of 30 October 2013 was quashed and remitted for fresh consideration.
2. Only one person was to be appointed as Investigating Officer. The report could take account of assistance and differing views, but it could not present another officer as an Investigating Officer. The investigator’s opinion and reasons had to be contained in a written report. Oral statements at a meeting could not replace that report.
3. The errors were not minor technical defects. The competing views had not been properly communicated, the investigator’s reasons had not been given to the appropriate authorities, and the final version positively misrepresented the investigator’s true opinion. Taken cumulatively, these defects went to the heart of the reporting process. The court rejected the submission that a fully compliant regulation 20 report was invariably a jurisdictional prerequisite for every determination, but held that the particular combination of errors meant that no true final report existed.
4. Because no valid final report had been completed, the investigation remained open. The IPCC was therefore entitled in principle to reconsider the form of investigation under paragraph 15(5). The court adopted a pragmatic nunc pro tunc approach to the question whether prior judicial relief was required before the IPCC could rely on the invalidity of the earlier process.
5. The decision-maker was required to comply with the apparent-bias test stated in Porter v McGill [2002] 2 AC 537, [2001] UKHL 67, as supplemented by Lawal v Northern Spirit Ltd [2003] ICR 856, [2003] UKHL 35. A fair-minded and informed observer would conclude that there was a real possibility of bias where Ms Glass had repeatedly expressed strong views on the merits and then made the paragraph 15(5) decision herself. Her involvement invalidated that decision.
6. The IPCC as an institution was not disqualified. With entirely fresh personnel, it could reconsider whether to exercise paragraph 15(5) and, if appropriate, determine whether the investigation should be managed or conducted independently.