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'Plebgate': IPCC decision quashed on ground of apparent bias

The High Court has quashed a decision of the former Deputy Chair of the IPCC (for the IPCC to conduct an independent investigation into the conduct of the police officers concerned in 'Plebgate') on The High Court has quashed a decision of the former Deputy Chair of the IPCC (for the IPCC to conduct an independent investigation into the conduct of the police officers concerned in 'Plebgate') on the ground of apparent bias.    It is a useful reminder of the dangers decision makers face when they are required to act as the public face of an organisation but also to make quasi-judicial decisions: there is a real risk that their public comments may be perceived as having predetermined the outcome of the decision in question (as was the case here).

A claim for judicial review was brought by three police officers ("the officers") whose conduct had been made the subject of an investigation under the Police Reform Act 2002 .  The officers claimed that the decision of the IPCC to conduct an independent investigation was unlawful.  The challenge was based on two grounds: (1) that the IPCC did not have the power to make such a decision  as the investigation had concluded, and (2) apparent bias.

The investigation concerned comments made by the officers to the press following a meeting with Mr Andrew Mitchell, the then Government Chief Whip.  The officers were all members of the Police Federation and the meeting was arranged following an allegation that Mr Mitchell referred to armed protection officers stationed outside Downing Street as 'plebs' one evening.  An audio recording of the meeting between Mr Mitchell and the Police Federation officers was made covertly by a press officer.  At the end of the meeting, the officers addressed the media, who were waiting outside.  The officers stated their view that Mr Mitchell should resign and described him as "continuing to refuse to elaborate on what happened."

About a week later, a television programme called into question the accuracy of what the officers had asserted.  The transcript of the recording revealed that, at the meeting, Mr Mitchell had in fact informed the officers of the words that he thought he had used and that the officers acknowledged during the meeting that he was elaborating on the incident (contrary to their subsequent statement to the media).

The matter was referred to the IPCC by the police forces concerned (each officer coming from a different police force) and the IPCC directed a supervised investigation (i.e. an investigation carried out by the police force under the supervision of the IPCC).   The IPCC had  a statutory power to redetermine the mode of investigation at any time.  The forces in question conducted a combined investigation and an Investigating Officer was appointed to conduct the investigation with assistance from a Temporary Inspector.  An officer of the IPCC was appointed to supervise the investigation    At the conclusion of the investigation, there was some disagreement between the Investigating Officer and the Temporary Inspector as to whether or not there was a case to answer in respect of misconduct.  This difference in opinion ultimately led to three different versions of the investigation report being produced;  one offered no view on whether there was a case to answer in misconduct and two which stated that there was no case to answer in misconduct.  None of the three versions clearly stated in the body of the report the Investigating Officer's view that there was a case to answer in misconduct.  All three police forces determined that there was no case to answer in respect of misconduct.

The Deputy Chair of the IPCC was unhappy with this outcome, but as the investigation had concluded,  she considered that the IPCC had no power to redetermine the mode of the investigation (i.e. to order an independent investigation by the IPCC) or otherwise interfere with the conclusions of the investigation or the subsequent determinations.  She wrote to one of the forces concerned to express her view that there was a case to answer in respect of gross misconduct in relation to the relevant officer.  The IPCC also issued a press release in which she was quoted as disagreeing with the determinations of the police forces.  Specifically she stated her own view that the evidence was such that a disciplinary panel should determine whether the officers 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 also gave evidence to the Home Affairs Select Committee, where she said that she was "absolutely astonished" that there was no decision that there was a case to answer of gross misconduct.

The IPCC, (specifically the Deputy Chair), subsequently decided that it did in fact have the power to redetermine the mode of investigation.    The Deputy Chair explained that the IPCC considered the procedural irregularities in the investigation to be such, that "the purported final report was so flawed…as to be null and void."  She decided that the IPCC would conduct an independent investigation into the matter.   The officers challenged this decision.

The High Court  first considered whether the IPCC had power to redetermine the mode of the investigation and concluded that it did.  It found that the procedural irregularities in producing the investigation report were "so wholesale and so fundamental that the consequence is that no true final report was ever submitted and the subsequent determinations of the [police forces] are as a result invalid".   The High Court therefore considered that since no valid final report had been produced, the investigation had not concluded and the power to redetermine the mode of investigation was still available to the IPCC.

However, the  Court went on to consider the issue of apparent bias.  It noted that the Deputy Chair had "publicly and repeatedly made her disagreement with the determinations...absolutely plain".  It concluded that fairness and the application of the principles of apparent bias and predetermination required that she should not have been the maker of the decision to redetermine the mode of investigation, and for that reason, the decision was quashed.   The Court noted that there had been a change in personnel at the IPCC and that the Deputy Chair had left.  It considered that the proper course of action would be for the IPCC to be left to redetermine the matter.

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