How can two investigating officers and a deputy chair of the IPCC come to three entirely separate and different conclusions in the same case? That is exactly what happened in R (oao (1) Ken Mackaill (2) Stuart Hinton (3) Chris Jones (Claimants) v IPCC (Defendant)& (1) CC of West Midlands (2) CC of West Mercia (3) CC of Warwickshire (Interested Parties).
The case background is that the IPCC had directed that a misconduct investigation take place against the Claimant police officers (‘P’). P, however, were employed by three separate police forces (the interested parties above).
An investigating officer (‘R’) was appointed and assistance provided by a temporary inspector (‘S’). A draft report was produced and recorded that R and S disagreed whether there was a case of misconduct to answer, S stating there was no case to answer. The draft report was sent to the IPCC and eventually considered by the deputy chair of the IPCC (‘G’).
G disagreed with the view of both R and S and took a more robust view. G’s view was that P, the Claimant police officers, had a case of gross misconduct to answer.
Following incorrect advice from the IPCC to R and S, further draft reports of the misconduct investigation against P were prepared. However, every draft produced was invalidly drafted.
Eventually, a final draft was prepared and concluded with a single view that P had no case of misconduct to answer. G remained unhappy with this and, via the IPCC, issued a press release to this effect making her views public.
The matter then progressed to an investigation by a House of Commons Home Affairs Select Committee. At this point the original draft reports were made public. Following this, it triggered the IPCC to again review their previous decisions.
Upon review, the IPCC determined that, due to procedural irregularities during the final report’s production, they could view the investigation as never having being fully completed. The purpose of the IPCC taking this view meant they could pave a way to exercise a discretionary power allowing them to ‘re-determine’ the mode of investigation, with the intention of gazumping the original investigating officers role and replacing it with themselves as the lead.
P, the Claimant police officers, were unhappy. Their primary issue was that G (the deputy chair), had been heavily involved in the IPCC’s decision to exercise their power. P therefore felt, whilst the power was exercisable in principle, the decision making process should have been undertaken without G’s influence or involvement. P felt that G’s involvement meant there was an inherent bias, and her previous publicly stated views against them had meant the decision to exercise the power was pre-determined.
P then sought to judicially review the IPCC’s decision to exercise their power on the grounds of bias. Their application was granted.
This case demonstrates a catalogue of errors. The investigating officers repeatedly failed to produce valid reports. The IPCC failed to give correct advice to the investigating officers, and then further failed to recognise the potential bias that G may be seen to have in determining whether to exercise a statutory power.
Finally, between the views of R, S and G, there was, remarkably, an entire spectrum of potential investigation outcomes. These ranged from one end (no case of misconduct to answer) all the way to the opposite end of the spectrum (a case of gross misconduct to answer).
This is reassuring for neither complainants nor police officers. What it is, is a shambles.
Luke Cowles, Solicitor
Posted on Monday, 3rd November 2014