Independent Police Complaints Commission, R (on the application of) v West Midlands Police & Ors

MR JUSTICE BURTON: This has been a hearing of a claim for judicial review, permission having been granted by the single judge, by the Independent Police Complaints Commission, which has been represented by Mr Tom Weisselberg of counsel. The Police Complaints Commission has particular responsibilities in respect of investigations into the conduct of police officers to ensure their propriety. In particular, under section 10 of the Police Reform Act 2002, the functions of the Commission include:

The Commission has brought before me a question to decide, as to whether the decision of the Chief Constable of the West Midlands Police, the defendant, as reviewing officer in relation to decisions taken by a disciplinary hearing in respect of the conduct of the third and fourth interested parties, was correct in concluding that he had no discretion to allow at a review meeting the presence of anyone other than the officers themselves and, if appropriate, their counsel or solicitor or accompanying officer.

The particular facts of the conduct in question here do not matter at all. The third and fourth interested parties were both officers in the Derbyshire Constabulary and the result of complaints against them by the parents of a lady who tragically was murdered (now the first and second interested party in these proceedings) led to in one case the demotion and in the other case the removal from the force of the officers complained of at the hearing. They are each seeking a review of that decision and it is in relation to the review meeting requested by both those officers that the reviewing officer, the defendant, gave a decision that he had no power to allow the presence either of a representative of the Independent Police Complaints Commission, now the claimant, or of the complainant's representatives who in this case, if they wished to attend, would be the parents. He went on to say, clearly on advice because his decision is a lengthy one, that if he had the power, which he was satisfied that he did not, to admit anyone representing either the Commission or the complainant parents, he would have exercised it in favour of admitting them. The issue, therefore, has been as to the jurisdiction or power of the reviewing officer, and that is the matter which has been brought before me.

The battlegrounds are that the claimant contends that the defendant's decision is wrong in law. The first and second interested parties, the parents of the deceased, play no role. The third interested party, one of the two officers, has appeared through counsel, Mr Baumber, to support the defendant and oppose the claim. The fourth interested party has appeared through counsel, Mr Barclay, to take a neutral stance. The fifth interested party is the Secretary of State who has issued guidance, to which I will refer, which must be suggested by the defendant, if his stance is to be correct, to have been ultra vires the statutory powers under which the statutory guidance was purportedly issued. The Secretary of State was joined in case she wished to justify the vires under which the guidance was issued. Although putting in an acknowledgment of service stating her position that the guidance was lawful, she has not been separately represented. Of course it is, however, part of the claim in this case that the guidance was lawful guidance.

Finally, the Chief Constable of the Derbyshire Constabulary has attended, not in order to take a position expressly on the dispute between the claimant and the defendant, but to point out that the consequence of the position taken by the defendant would appear to be not directed only to the presence of the Commission or the complainant parents at a review meeting, but it must extend also to the presence of anyone at the review hearing, which would include the prosecution -- that is the presenting officer who had brought the case against the officer in a given case -- and the Chief Constable of Derbyshire Constabulary would be opposed to that conclusion, for the reason that it is in the interests of justice, as he would submit, for the presenting officer to be present. If the guidance is correct and/or if the Regulation does not fall to be construed as the defendant asserts, so that his jurisdiction is not limited and his discretion is unfettered, then in a given case a reviewing officer might or might not decide to have present not only the officer and any representative or companions, but also the presenting officer and/or a representative of the Commission and/or the complainants or their representatives.

The issue then is simply one of construction of the Regulations under which the reviewing officer has concluded that he has no such jurisdiction. They are in very short compass. There have been earlier regulations (which we have looked at briefly, only because they are referred to in the factual context of the early authorities) but the relevant regulations now are the Police Conduct Regulations 2004 SI 2004/645. These provide for the disciplinary hearing itself, for a review, and for a review meeting, at which the findings of that disciplinary hearing can be quashed or varied. There is, quite apart from the review hearing, opportunity for an appeal and that appeal is governed by the Police Appeals Tribunal Rules 1999, SI 1999/818.

The 2004 Regulations provide for the hearing in some considerable detail, in Regulations 29 to 39. It is expressly stated in relation to such a hearing in Regulation 30(1) that:

So far as the officer is concerned, there is again express derogation from the provision that the hearing must be private in his regard also. He, by Regulation 33, may be accompanied -- and that plainly means shall, if he wishes, be accompanied -- at the hearing by another police officer and, at the discretion of the tribunal or presiding officer as the case may be, by any other person, or, in a case where the claimant or an interested party is accompanied by a greater number of persons, by that number of persons. The hearing is therefore, subject to the overriding provision that it is otherwise in private, likely to be attended by a considerable number of interested parties, but in particular by the Commission and by the complainant(s) if they so choose.

Leaving for a moment the Regulations, I turn to the Appeals Tribunal Rules, because of course there does not have to be a review. There is an express provision for an appeal. I understand that in any event there are proposals to abolish the right of review as part of proposed statutory changes. The appeal is again provided, by Rule 9 of the 1999 Appeals Tribunal Rules, to be held in private. By Rule 9(1) the following is provided:

There is provision in relation to both hearings as to what should happen if there were evidence to be given, or disclosure made, of matters which it appeared it would be in the public interest not to disclose to the public. Regulation 31 of the 2004 Regulations deals with that at the hearing, and Rule 9(2) at the appeal hearing.

It is apparent that there is a fairly full code in relation to what occurs both at the hearing and at the appeal hearing (to which virtually the entirety of the 1999 Rules is dedicated). The review hearing is dealt with very much more shortly in the 2004 Regulations. By Regulation 40, it is provided that the officer against whom a sanction has been imposed, or in respect of whom a challengeable finding has been made, shall be entitled to request the chief officer in the force concerned, or in appropriate circumstances the Assistant Commissioner, to review the finding or the sanction. A request for review has to be made within 14 days of receipt of the written summary of reasons and it must state the grounds on which the review is requested and whether a meeting is requested. That is one of the four provisions relating to review in the 2004 Regulations, and it indicates that a meeting can be requested.

The central paragraph which has met the most scrutiny in the course of this hearing is Regulation 41:

Regulation 42 deals with the consequences of a review and, in particular, at 42(2) it is provided that:

The submissions of those who support the decision by the reviewing officer that the result of a proper construction of Regulation 41 is that he has no power to admit either the Commission or the complainants to the review meeting which he has been requested to hold are as follows. Not all the submissions have been adopted by both of the two main protagonists in support of the reviewing officer.

First -- and this is primarily the submission of the third interested party, Mr Baumber -- that the Latin principle, expressio unius, exclusio alterius, applies. That is helpfully expressed in Latin (which is certainly not unwelcome in this court, perhaps in others) but is not a difficult concept to express, albeit it may need more words in English. What it means is that if a statute rules out or rules in one matter or person or thing in particular, then anything that is not mentioned is likely to have the reverse applied to it.

Although the Latin tag was not used in two of the authorities that have been referred to me, it is quite plain that that was what the court was applying. In Maynard v Osmond [1977] 1 QB 240 there was express provision for legal representation for senior police officers, and the court was not able to construe the relevant police regulations, as requested by the claimants in that case, to permit legal representation for junior police officers. The fact that there was express consideration by the regulations, which ruled in legal representation for category (a), meant that category (b) had no right to that legal representation; expressio unius, exclusio alterius. Similar matters arose in the case of R v South Yorkshire Police Authority ex parte Andrew Booth, unreported, CO/4297/1999, a decision of the Divisional Court given on 28th July 2000. That was where, once again, junior officers were seeking to claim entitlement to costs paid from police funds and the express provision was that such costs were only payable in respect of senior officers.

That is not a concept from which Mr Weisselberg for the claimant differs. Nor does he, in my judgment, need to. Regulation 41 is misunderstood if it is said to exemplify that proposition. Reliance is placed by Mr Baumber in his skeleton argument on Regulation 41(2), which provides, as I read earlier, that the officer concerned may be accompanied by another police officer and, as appropriate, by a legal representative. That does not, however, in any way rule out the possibility of other people attending. If the claimant is right (and I shall turn to that) that there is a discretion in the reviewing officer to allow people in -- be they the claimant or presenting officer or anyone else -- then he may exercise that discretion in favour of admitting or of excluding such people. What he cannot do as a result of Regulation 41(2) is to exclude a police officer's representative. That is a given. It overrides any discretion. The presence of a statement that he must let in (a) does not rule out any question of the fact that he may let in (b). The Latin concept thus has no application.

The second proposition is that which was primarily the subject of Mr Oldham's submissions, although of course Mr Baumber supported them. It is a combination of two submissions. The first is that there must be a conclusion that Regulation 41 is providing for a private meeting. If the provision is that the meeting is private, then the provision in Regulation 41(2) is the only indication of a "but" (as in "private but"), and of course, on that basis, any discretion to allow anyone else in is excluded if it is the case that the meeting must otherwise be private.

This submission is arrived at in two ways. First, Mr Oldham submits that the reference to a meeting, as opposed to the use of the word "hearing", suggests that it is more private than a hearing. A meeting suggests the possibility of two people meeting face to face and does not imply a hearing. At least, it gives the opportunity for a different construction; review meeting, as opposed to a full hearing with the panoply of provisions laid down in the Regulations to which I have referred.

Alternatively, he relies on what he calls his ‘complete code argument’, and he says in that way that the provisions of the Regulation should be seen as a whole, and that there should be no difference between Regulation 41 and its establishment of the conditions in which the review meeting was to be held, and the conditions under which the first instance tribunal has been held or the superior appeal hearing is to be held. To an extent, there is an inconsistency between the two arguments insofar as he contends that the use of the word "meeting" imports something different from a hearing, so that it should not necessarily be assumed that the provisions relating to the hearing would also apply to a meeting.

But whether he arrives at the conclusion through the one route or the other, he submits that there is no room for an implication, as he would submit that it would be, into Regulation 41 of a discretion for the reviewing officer.

For the ‘complete code’ contention, he relies on Credit Suisse and Another v Waltham Forest London Borough Council [1997] QB 362 per Neill LJ at 374B where he said:

Once again, Mr Weisselberg takes no issue with that proposition, but he submits, and I agree with him, that there is not in this case a detailed provision relating to the review meeting. I am entirely satisfied that the express provision of "private but" relates to the tribunal hearing and to the appeal hearing. It is the defendant and the third interested party who are reading into Regulation 41 a provision which is not there, namely an express provision for the meeting to be held in private, with no room for a discretion; it is not a question of the claimant reading in a discretion. The claimant is not reading in a discretion, it is rather relying on the absence of the provision that the meeting must be in private. I am satisfied, therefore, that the complete code argument is no answer to the proposition. We are left with the situation in which the meeting has not been expressed to be private and, on the face of it, therefore, there is automatically room for a discretion for the reviewer.

I turn to Mr Oldham's more powerful argument, which relies upon his emphasis on the difference between a meeting and a hearing. He also relies upon the fact that there is a provision, which I have referred to, for notification in certain circumstances to the claimant of the result of the hearing, which he says supports his case that the meeting will have taken place in the absence of the claimant, or indeed anyone. Given that there is no express provision for "private but" in relation to the meeting, and given that the meeting is dealt with much more shortly and differently from the original hearing and the appeal hearing, in my judgment the only way to arrive at a consideration as to what is intended in relation to the meeting is by reference to the relevant Regulations dealing with the review themselves; as to which I reach the following conclusions, with the assistance of Mr Weisselberg, although because of his careful submissions I did not in any event call upon him to open his case, turning to the defendant to justify the position.

First, the context of this review meeting is, in my judgment, extremely significant. The context is that the result of the meeting can be, under Regulation 42(2), to confirm or overturn the decision made at the hearing. The original hearing may have taken place over some days. It will have had the attendance of many people, as is apparent from the Regulations which I have described. Yet in a review meeting, not attended by anybody other than the officer, if the defendant is right, all this can be overturned.

In anxiety to ensure that the presenting officer should not be excluded from such a review hearing, Mr Beggs has drawn my attention to a recent decision of Wyn Williams J in R (on the application of Independent Police Complaints Commission) v Hayman [2007] EWHC 2136 Admin. That dealt with a different question, but what Wyn Williams J said at paragraphs 35 and 36 has some assistance in this case. First, he indicated at the end of paragraph 35 that in his judgment:

I am entirely clear that there is a role for others than the officer at the review hearing at the discretion of the reviewing officer. It has been suggested to me that the review is only a review and not an appeal and, for example, evidence would not be led at such a meeting. But that is not so say that argument may not be run on a review, such as a case that the decision at the hearing was flawed for some reason or other; flawed in law, flawed because of a lack of disclosure, flawed because of some misconduct or alleged misconduct of one side, or even of the presiding officer. It is in this context that it is important for there to be at least the opportunity for inter partes argument at the review meeting if the reviewing officer considers that it might be necessary.

Secondly, an apparently powerful argument was raised by Mr Oldham by reference to the fact that there need not in fact be a review meeting at all unless it is requested by the officer. I accept that no-one else can request a review meeting other than an officer -- that is clear from Regulation 40 -- but he may in the event not request one, in which case his review will take place on paper. Mr Oldham submitted that if there can be a review on paper implicitly without the involvement of any other party, and thus just a relatively informal decision by the reviewing officer looking at the request for a review and its grounds, it was difficult to see why it should be assumed that if there were a review meeting there should be inter partes argument.

I concluded however that it would be unlikely that even on paper, absent some express provision, which there is not, there would be anything to prevent the reviewing officer from calling for comments on paper from, for example, the presenting officer: it may also be from others, depending on what the nature of the suggestion on paper was. Consequently, if there could be such an inter partes role even on paper, how not, equally if not more so, in relation to an oral meeting, at which matters might arise which had not been heralded by details in written submissions, because no more than the grounds for the review are required to be set out in writing by Regulation 43.

Mr Oldham I think found it difficult to contest the proposition, though he felt it necessary to do so, that there could be a role for inter partes argument in the case of a review decided on paper. But in essence his argument, both in relation to the absence of submissions on paper and to the absence of inter partes argument at a review meeting, was that even if that led to an inequity, I should not be swayed by the presence of an inequity to construe Regulation 41 accordingly. I disagree. It seems to me that, unless I am constrained, as the defendant thought the reviewing officer was constrained, from allowing inter partes representation and, if necessary, argument at the review meeting, I should strain to find in favour of it.

Mr Weisselberg has drawn my attention to the well known principles enunciated in Scott v Scott [1930] AC 417, emphasising the desirability of litigation being in public rather than in private. Mr Oldham submitted that that only applied to litigation in the High Court and not to this kind of tribunal. But I remain unpersuaded by that submission, in the sense that although Scott v Scott is clearly not directly relevant, where I am left with a provision which does not expressly make a hearing or a review meeting private, or private with exceptions, I should not be driven to conclude that it should be private, unless there are powerful considerations. I am entirely persuaded that the considerations here are all the other way and that, for example, in a position which he indicated was expressly dealt with in relation to the tribunal hearing and the appeal hearing with regard to possible public disclosure issues, so too can it be dealt with by way of a sensitive and realistic exercise of discretion by the reviewing officer during the hearing if those matters arose.

As for Mr Oldham’s point that notification is required to be given to the Commission of the result of the meeting, this seems to me to be entirely neutral, applying whether or not the Commission was (or was entitled to be) present at the meeting.

I have not yet addressed the existence of the statutory guidance by the Secretary of State, the fifth interested party. There is a power under section 87(1) of the Police Act 1996 for the Secretary of State to issue such guidance, that 1996 Act being the very Act which by section 50 has founded the Regulations which establish the hearing, the review meeting and the appeal. On the face of it, therefore, this guidance must be of importance and section 87(1) of the Act indicates:

Although it was not drawn to my attention to begin with, Mr Baumber very properly drew my attention not only to paragraph 4.9 of the guidance but also to paragraph 4.7, which has direct relevance to the dispute raised by Mr Oldham as to what would be the effect if there were no request for a review. The heading in the statutory guidance is "The Review" so it is expressly directed to what we are now considering. Paragraph 4.7 says:

It is plain that this guidance is dedicated to a situation in which there is not to be an oral hearing. Unless this guidance is ultra vires, it answers the question as to whether even a review on paper can and should become inter partes, in the sense of the reviewing officer seeing arguments on paper from both sides. Mr Baumber, who drew this to my attention, was not entirely consistent, in any event, as to whether he submitted that this provision also was ultra vires. I think he sought to render it intra vires by saying that it was limited to a request for extra information from the presiding officer as to what occurred at the hearing. I am satisfied that that was only an example of the respects in which there can be input at the discretion of the Chief Constable from a presiding officer, even if the review is on paper.

I turn to the nub of the question which relates to there being a review meeting, namely paragraph 4.9:

Mr Oldham submits that because of his construction of Regulation 41 the guidance by the Secretary of State contradicts it. Mr Weisselberg submits that there is nothing in the Regulations which indicates that a review meeting must be private. Even without the guidance, it would be clear that the reviewing officer had a discretion. This guidance either assists in the operation of that discretion or, at any rate, reminds him that he does have such discretion and it is certainly not inconsistent with or reversing or contradicting the terms of the Regulation.

There were some interesting disputes in the course of the hearing as to who it was who was reading words into the Regulation, and it was suggested by the defendant that Mr Weisselberg was reading a discretion into the Regulation by reference to this guidance. I am entirely satisfied that those who are doing the reading into the Regulation are those who assert that there is a provision that a review meeting must be private, and that there is no "but", such that consequently it remains private, and no discretion exercised, save for the requirement that the reviewing officer must allow the officer to be represented. It is in my judgment that contention which does violence to the Regulation; it is ‘private but’ which is not in the Regulation, but which is being sought to be read in.

I am entirely satisfied that the claimant is correct in concluding that there is no bar on the attendance of other parties than the officer. The matter remains at the discretion of the reviewing officer. It is suggested by the defendant and the third interested party that this in some way foresees the possibility that there will be positively more people present, at what is described as a meeting than there were at the hearing. I have no doubt at all that sensible reviewing officers will seek to limit the numbers of people present, but will exercise their discretion so that no more people are present, and possibly less in terms of overall numbers, than were at the hearing, and indeed will exercise the discretion consistently with the approach of the Regulations towards the hearings and the appeals. But that the reviewing officer does have a discretion, I am entirely certain.

In those circumstances this application is successful.

MR WEISSELBERG: In terms of an order, if your Lordship takes up the main hearing bundle and turns to page 3, in section 6 of the claim form the IPCC has asked for an order quashing the decision of the defendant that he is precluded by law from admitting a representative of the claimant or other interested person from attending a review meeting. That is the order we ask your Lordship to make. We also ask your Lordship to order the defendant to pay the IPCC's costs.

MR JUSTICE BURTON: Do you have a summary assessment?

MR WEISSELBERG: My Lord, we have. It is £5,965 plus VAT which brings the total to £6,969.23.

MR JUSTICE BURTON: Thank you very much. You are seeking that against who?

MR WEISSELBERG: Against the defendant.

MR OLDHAM: My Lord, if I could just address a matter for clarification. I hope your Lordship does not mind.

MR JUSTICE BURTON: Take your time.

MR OLDHAM: Before we go to the question of the order and costs, I do have this point. As I understood the claim, the claim was that we had the discretion to let people attend. At one or two points in your Lordship's judgment your Lordship referred to rights of making submissions, in other words not just attending but doing something.

MR JUSTICE BURTON: If called upon by the reviewing officer.

MR OLDHAM: I just wanted to clarify your Lordship's understanding. That too must be a matter of discretion.

MR JUSTICE BURTON: Absolutely. I interpret the discretion being exercised at the hearing rather similarly to the exercise of discretion if it was on paper; namely that if you would be assisted by submissions, particularly if there seems to be a powerful submission for the officer which might actually lead you to quash the decision if it is right, you are bound to turn to the other side and say "What do you say?".

MR OLDHAM: So there might be circumstances, as I understand your Lordship's judgment, where people could be admitted not for the purposes of making submissions but just so they could hear what happened.

MR JUSTICE BURTON: It may well be that you will be in a position to articulate that if someone comes it is not for the purpose of making submissions, for example, the complainants and, for that matter, almost certainly the Commission. The presenting officer, however, that might well be a different matter. You could say you may attend and assist if requested, but of course if you hear a matter which you think is inconsistent with what you believe to be the true position we have no doubt you will draw it to our attention. It is all in the discretion of the very experienced, as you rightly pointed out, reviewing officer.

MR OLDHAM: I am most grateful for that clarification.

MR JUSTICE BURTON: Do you disagree with that, Mr Weisselberg?

MR WEISSELBERG: No, my Lord.

MR OLDHAM: On the issue of the order, I have no problem with the wording save that it is obviously to be read in terms of your Lordship's judgment, recognising that we have a discretion as to whether in any case --

MR JUSTICE BURTON: I do not think there is a necessity for that to be spelled out.

MR OLDHAM: I agree. I am sure there is no dispute there.

MR WEISSELBERG: No, there is no dispute in the fact of your Lordship not needing to record it in his judgment, but that is because the defendant has exercised what discretion he has to admit the authority on this occasion. As long as my learned friend is not seeking to say he is going to reconsider that and prevent the Commission from attending, then I am content for the order to say what it says in section 6. If my learned friend is seeking to go behind that position then I would like him to say so now.

MR OLDHAM: We are not, on the facts, although it might have been said at any given time one has to look at the up-to-date facts. But my instructions are that we are not seeking to go behind that exercise of the discretion.

My Lord, on the issue of costs, I submit that no order for costs should be made in this case. The Chief Constable's aim in defending these proceedings was to seek clarification from your Lordship on the point of law which he, acting as a judge or tribunal, felt needed to be clarified bearing in mind the competing interests of those before him. As your Lordship is well aware, where a tribunal or court had a decision which has been reviewed, it is not normally the case that --

MR JUSTICE BURTON: Well, there have been cases where the Ombudsman has faced costs.

MR OLDHAM: The Ombudsman is not a court or tribunal in that sense, my Lord.

MR JUSTICE BURTON: Do you have any authority to support this?

MR OLDHAM: Not directly.

MR JUSTICE BURTON: I quite understand that if the County Court or Crown Court makes a decision which is challenged, it is up to the interested parties to defend, but this is rather different.

MR OLDHAM: We do say that we are rather more in the nature of a court or tribunal here than the Ombudsman is. The Ombudsman has a discretion whether to get involved and a great deal of discretion as to what decision it makes. Our position is that we are in effect a court or tribunal. That is my first submission.

My second submission is this. Our defence of the claim was in any event the exercise of a public duty to clarify this point which has a general application. Your Lordship has seen that --

MR JUSTICE BURTON: Sorry to interrupt, but it sometimes happens, does it not, for example in relation to the CAC whereby the CAC says "We stand by our decision but we now leave it up to the court and the interested parties will go and fight it". But that again has not happened here. You have come and very vigorously and persuasively defended it in front of me.

MR OLDHAM: My Lord, we have, but for the purposes of ensuring that both parties feel that the points have been properly aired.

MR JUSTICE BURTON: I can quite understand if you thought it was going by default you might have felt some obligation to be here, but that is not this case.

MR OLDHAM: In any event, my Lord, that is what we say. We say in the circumstances we should not face a costs order for carrying out a public duty, particularly, your Lordship might feel, in favour of another public authority.

MR JUSTICE BURTON: What about the quantum, £6,969?

MR OLDHAM: My Lord, nothing.

MR WEISSELBERG: In the interests of avoiding a future review in a similar case, your Lordship has given details on the discretion of the Chief Officer for clarification in this case, the discretion being invoked in favour of the IPCC. It may be that the parties may be assisted with the position where the Chief Constable in his discretion refuses the IPCC.

MR JUSTICE BURTON: That would have to be shown to be Wednesbury unreasonable, would it not? Well, you can have your costs £6,969. Twenty-one days?

MR WEISSELBERG: I am grateful, my Lord.

MR JUSTICE BURTON: Thank you all very much.