Rowland v Mitchell [2014] EWHC 4015 (QB)

[2014] EWHC 4015 (QB)Case No HQ13D01052 & Case No: HQ13D05940
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Venue Royal Courts of JusticeDate Thursday 27 th November 2014
Before
Mr Justice Mitting
Between
Andrew MitchellClaimantNews Group Newspapers LimitedDefendant
James Price QC (instructed by Atkins Thomson Solicitors) for ClaimantGavin Millar QC (instructed by Simons, Muirhead and Burton) for Defendant
Between
Toby RowlandClaimantAndrew MitchellDefendant
Desmond Browne QC (instructed by Slater & Gordon) for ClaimantJames Price QC (instructed by Atkins Thomson Solicitors) for DefendantHearing Hearing dates: 27 th November 2014
JUDGMENTMr. Justice Mitting Thursday, 27 th November 2014(1.57 pm)Ruling by MR JUSTICE MITTING
[1]Since 1989, Downing Street has been protected, at both the Whitehall and Horse Guards Road ends, by manned security gates.[2]The Whitehall gates are the first line of defence against a vehicle-borne attack. The second is a lowerable metal ramp or vehicle blocker and strategically placed metal bollards inside Downing Street. There are three gates and a card-operated turnstile to admit members of staff working in Downing Street.[3]The first pair of gates on the Whitehall side are lightweight metal gates, which effectively do no more than mark the boundary of the area from which those without permission to enter Downing Street are excluded.[4]Behind them are a pair of heavy metal gates on rollers. For vehicles to pass, both pairs of gates must be opened. The area between is known by the officers who man the gates as the pit or, with grim flippancy, the suicide pit.[5]To the right -- looking from Downing Street towards Whitehall -- of the vehicle gates is a single foot pedal operated pedestrian gate. A pedestrian leaving via this gate must then turn right alongside the Whitehall front of the Foreign and Commonwealth Office behind a low barrier to get to the pavement.[6]Between the vehicle and pedestrian gates is a bullet and blastproof police hut. Further into Downing Street on the Foreign and Commonwealth Office side are a manned search hut and a further police hut, next to the vehicle blocker from which it is operated.[7]At the Horse Guards Road end of Downing Street there is a pair of vehicle gates and a card-operated turnstile. There is no separate pedestrian gate.[8]Once inside the gates, pedestrians, but not vehicles, can reach Downing Street by climbing the steps at the Horse Guards Road end, but to do so have first to be let through a manned pedestrian gate at the foot of the steps.[9]Pedestrian and vehicle traffic in Downing Street is regulated by a Traffic Management Order made on 11 June 2008 by Westminster City Council. The order prohibits any person from entering or proceeding in Downing Street except with the permission of a police officer in uniform.[10]During the working day, and until 10 pm, 13 uniformed police officers are deployed at various posts in Downing Street. All are members of the Diplomatic Protection Group which guards Downing Street, the Palace of Westminster, and Embassies and High Commissions in the Government Security Zone in central London. All are armed.[11]Four or five police officers are posted to the Whitehall gates; one or two in the pit; two on the Downing Street side of the vehicle gates, and one at the pedestrian gate.[12]In 2012, they were at post for two, two-hour periods in an eight-hour shift. They reported to a base sergeant at their headquarters at APEX House in Charing Cross. He in turn reported to an inspector.[13]Civilian security officers based in 10 Downing Street were also responsible for security. An officer, known as a custodian, was based in a room in 10 Downing Street. His duties included observing live CCTV coverage of Downing Street, its entrances and the areas immediately outside, shown on a multiscreen monitor. CCTV cameras are positioned in and outside Downing Street.[14]To ensure close cooperation between uniformed police and the civilian security officers and their superiors in 10 Downing Street, there were five Downing Street liaison officers managed by a sergeant from 2010 until November 2012, Sergeant Jonathan Norton. The purpose of these arrangements is to protect the seat of government of the United Kingdom from attack, principally from terrorist attack.[15]There has been only one since the gates were erected, by the provisional IRA mortar attack on 7 February 1991.[16]It is in the nature of such attacks that they are sudden and difficult to predict. Guarding against them requires a high degree of vigilance and training on the part of those responsible, the armed police officers assigned to Downing Street. Careful thought also needs to be given to the practice to be followed in affording passage through the gates at either end.[17]The Whitehall vehicle gates are potentially a source of weakness in the security arrangements. Once open, the first line of defence against a vehicle-borne attack is disabled. Probably for that reason, the policy of allowing bicyclists to use the vehicle gates, which had applied for many years, was changed, some time before 2010, to require them to use the Whitehall pedestrian gate.[18]Sergeant Norton's understanding was that this policy was promulgated in a directive issued by Jennifer Goodwin, who reported to the civilian head of security in Number 10. No trace of this directive has been found, but I am satisfied that it was the common understanding of those guarding the Whitehall gates that cyclists were required to use the pedestrian gate, for the obvious reason that it reduced the risk created by opening the vehicle gates, and also, as Sergeant Norton stated, because it avoided the risk of collision with fast-moving vehicles passing through the gates.[19]On 15 December 2010 the policy was supplemented or reinforced -- it's not clear which -- by an email sent by Sergeant Norton to the five DPG units responsible for guarding Downing Street about access through the Horse Guards Road gates. Pedestrian -- I underline pedestrian -- access through the vehicle gates was not to be allowed. The email said nothing about bicyclists. It did, however, restate an instruction that cabinet ministers and visitors, but not staff, were to be permitted to use the pedestrian gate in Whitehall.[20]The lack of clarity in the policy about access for bicyclists at the Horse Guards Road gates caused problems for Mr Mitchell. As Secretary of State for the Department for International Development, his office was in Buckingham Palace Gate. His route to Number 10 to attend cabinet meetings took him through the Horse Guards Road gates, often on his bicycle.[21]He says, and I accept, that this ordinarily caused no problem for him. Police officers guarding the Horse Guards Road gate would let him through. There were, however, at least three incidents in 2011 in which he experienced difficulty in getting through on his bicycle.[22]One was on 3 May 2011. Mr Mitchell was late for a cabinet meeting. PC Jephcott did not recognise him. Mr Mitchell asked or demanded to be let through. PC Jephcott telephoned the custodians in 10 Downing Street who did recognise him on the CCTV monitors. Mr Mitchell complained about being kept waiting but was let through. PC Jephcott noted the incident in his police notebook.[23]It is possible that PC Smart was also on the gate on 3 May 2011 and a witness to the incident. He recalls something similar prior to the incident in which he was definitely involved on 7 June 2011 with PC Stew.[24]On that day PC Smart intended to apply the policy of not admitting cyclists through the Horse Guards Road gates strictly. When Mr Mitchell arrived at 9.30 am and asked to be let through, he refused. Mr Mitchell said he had been let through before. PC Smart then pretended to consult the custodians. As he was doing so, Mr Ian Duncan Smith arrived in his ministerial car and got out. He was let in on foot through the vehicle gates, which had been opened by PC Smart or PC Stew to let the car in.[25]He asked if Mr Mitchell could accompany him. The police officers allowed him to do so. As he did, he said he would make a complaint about PC Smart.[26]This led PC Smart to compile an email, sent to Sergeant Norton on 8 June, describing what had happened.[27]Also on 7 June there was a second incident at the Horse Guards Road gates involving PC Withington. Mr Mitchell arrived at the gates on his bicycle and asked to be let through. As PC Withington was opening the gate, he said words to the effect:
"Always helps if you do this as rapidly as possible. We are all in a hurry."
[28]PC Withington noted the words down in his police notebook.[29]These two incidents were reported to John Groves, the head of security in 10 Downing Street, who composed and emailed a letter to Inspector Ken Russell, the overall Head of the Diplomatic Protection Group, on 7 June 2011. It read:[30]"I am writing formally to complain about the conduct of your officers who manage access to the rear of Downing Street at [blank]. Over the last few months there have been a handful of incidents where Cabinet Ministers, including Andrew Mitchell, Secretary of State for International Development, have either not been allowed access through the L-shaped road or have not been recognised/identified within a reasonable time period. I have discussed these previously with Jon Norton and reminders and more information about the physical appearance of Cabinet Ministers have, I understand, been circulated to your officers.[31]"This morning, there were further two incidences where DPG officers refused access to a Cabinet Minister who was here to attend Cabinet. In one incident, Andrew Mitchell was again stopped from entering the L-shaped road on his bicycle. According to this Cabinet Minister, the police office, PC [Blank] said that he did recognise who he, Andrew Mitchell, was but would not let him in. No clear reason was given. You will no doubt wish to check your officer's account of this exchange, but I cannot see any just reason why access was refused.[32]"As far as I'm concerned, members of HM Cabinet are entitled to unfettered access to Downing Street at any time, day or night, and at any entry point.[33]"Although they do not have a Downing Street photo pass, their access should be facilitated in as efficient and expedient manner as is possible, not least as they are here to see the Prime Minister.[34]"I think it is entirely reasonable that your officers should be able to recognise the relatively small number who come in on foot or by vehicle without the aid of a protection team."[35]Inspector Russell said that he would circulate his officers and, via Sergeant Norton, did so. Sergeant Norton's instruction, issued on 7 June 2011, reads:[36]"All members of the Cabinet are allowed unfettered access to Downing Street at all times by whichever entrance they choose. These members of the Cabinet are often attending Downing Street to see the Prime Minister and the expectation is that they are allowed entry immediately or within an appropriate time. One member of the Cabinet has been refused entry on three occasions within the last month. This is simply not acceptable."[37]Inspector Russell and Sergeant Norton said in evidence that this instruction only applied to access by Cabinet Ministers to Downing Street, not egress. I do not consider that this was a reasonable understanding of Mr Groves's demand or Sergeant Norton's email.[38]Mr Mitchell, who was aware of Mr Groves's letter, considered that he was, as a cabinet minister, entitled to come and go freely through the two main entrances to Downing Street. I consider his belief to have been reasonable.[39]The third incident involved PC Penton on a date which he did not note and cannot now remember. It is likely to have preceded Mr Grove's letter of 7 June.[40]The only relevance of these incidents is the policy to which they gave rise; that cabinet ministers were to be allowed unfettered access to Downing Street through both main entrances. It was not, however, clearly established whether this policy required police officers at the Whitehall gates to open the vehicle gates to allow bicyclists through them who were cabinet ministers. Access through the pedestrian gate gave cyclists, to all practical intent, unfettered access through the Whitehall entrance.[41]PC Toby Rowland, one of the two central figures in this case, was not aware of Mr Groves's letter. He did, however, see an email from Sergeant Norton, about the use of the Treasury Passage entrance for cyclists, of 11 September 2012. This required police officers to direct cyclists to use Treasury Passage, a long brick-lined tunnel between Horse Guards Parade Ground and the rear of Downing Street. It did not apply to cabinet ministers, but like some of Sergeant Norton's output, it was not crystal clear.[42]PC Rowland understood it to reinforce the policy about not allowing cyclists through the Whitehall vehicle gates. Mr Mitchell was, understandably, unaware of Sergeant Norton's email.[43]Mr Mitchell was appointed the Parliamentary Secretary to the Treasury, or Chief Whip, on Sunday, 2 September 2012, with an office at 9 Downing Street. From then on he made greatly increased use of the Whitehall entrance to Downing Street. This led to problems.[44]In the first or second week of September, after entering through the pedestrian gate on his bicycle, he was heard by one of the police officers guarding the vehicle gates, PC Penton, to shout:
"I'm coming through that gate ..."
Pointing to the vehicle gates: "... next time."[45]He was annoyed and appeared to be giving an order. PC Penton told him that it was because it was the policy and that the person to contact about it was Inspector Russell.[46]Mr Mitchell undoubtedly also came and went on his bicycle by the vehicle gates on several, possibly many, occasions as well. One such occasion was on Tuesday, 18 September. In unchallenged evidence, PC Watson stated that Mr Mitchell rode his bicycle from inside Downing Street towards the vehicle gates. PC Watson asked him to use the side gate. He said Mr Mitchell said in a stern tone of voice:
"I am the government Chief Whip. I will be leaving via these gates."
[47]He repeated his demand at least twice. In the end, the senior police constable on duty, PC Bonds, who found Mr Mitchell's conduct to be childish, told his colleagues to open the gates and Mr Mitchell cycled through them. He did not swear.[48]PC Watson sent out an email at 00.48 on 19 September to Inspector Russell about the incident. He described it as I have done and sought a clear instruction from Inspector Russell as to what should be done in future. He had not received a response by the time of the incident which gives rise to these defamation claims.[49]On 19 September, Mr Mitchell cycled to work at Number 9 at 8 am. His recollection, which I accept, is that he cycled through the Whitehall vehicle gates at 2.30 pm on his return from lunch, without incident. He then had a series of stressful interviews with disappointed Parliamentary colleagues, who had either been sacked or not promoted in the 2 September reshuffle.[50]He had an evening speaking engagement at a political and social event at the Carlton Club in St James's Street. He intended to bicycle there via St James's Park, which would require him to turn right out of the Whitehall gates, towards Charles II Street. The invitation was for 7.15 pm, for 7.45 pm.[51]The CCTV camera opposite the Whitehall gates of Downing Street show that at 19.33.38 -- 7.33 pm plus 38 seconds -- he left his office to get on his bicycle which was parked outside. He put on his cycle clips, mounted his bicycle and rode slowly towards the Whitehall gates. He did not appear pressed for time.[52]At the gates were PC Richardson in the pit, PCs Weatherley and Tupman on the Downing Street side of the vehicle gates, and PC Rowland at the pedestrian gate. As Mr Mitchell approached, PC Richardson signalled to him that he should go to the pedestrian gate, and said:
"To the gate, please, sir."
[53]Mr Mitchell replied:
"I am the Chief Whip from Number 9. Can you open the gate?"
Meaning the vehicle gates. As he came to a stop, PC Weatherley said that he would have to use the pedestrian gate. During the next 30 seconds or so there was a stand-off. Mr Mitchell said more than once that he was the Chief Whip from Number 9, had come in and out of the main gates, and asked for them to be opened. PC Weatherley who responded first told him twice that pedal cyclists had to use the side gate and that if he had a problem with that, he should take it up with the head of security.[54]PC Rowland then arrived from the pedestrian gate. He told Mr Mitchell that the policy was that he was to use the side gate and that until it was changed, no one would open the main gates. Mr Mitchell reiterated that he was the Chief Whip and intended to go through the main gates. He did so, not to confirm his identity, but to give weight to his demand to be let through.[55]Mr Mitchell appeared to all four police officers to be agitated during this exchange. Eventually, after PC Weatherley had turned to face Whitehall, away from Mr Mitchell, he dismounted and pushed his bicycle towards the pedestrian gate, past the blastproof hut and on to the pavement. If matters had ended there, all would have been well.[56]However, even if they had, the incident would not have reflected well on Mr Mitchell. If, which I doubt, he was genuinely in a hurry, he would have departed no faster via the vehicle gates than via the pedestrian gate. The heavy main gates and external low gates would have taken a little time to open and PC Rowland was in a position to open the side gate immediately.[57]The stand-off delayed his departure. The only reason for it was his insistence that he be allowed through the vehicle gates as a matter of principle, because he was a cabinet minister and the police officers should do what he demanded of them. If he disagreed with the policy, they said they were replying, or its implementation, he should, as PC Weatherley suggested, have taken it up with the head of security and not out on them.[58]PC Bonds described his conduct on 18 September as childish. This epithet is apt also to describe his conduct on the 19th, until the point of contention, which I now address.[59]The incident was captured on CCTV cameras, sited on top of the police hut opposite the vehicle blocker, high up on the Foreign and Commonwealth Office building pointing down Downing Street and towards Whitehall, and on the opposite side of Whitehall pointing towards the gates. The timings of the last two are coincident and roughly accurate. The timing of the first is about 2 minutes 2 seconds fast.[60]By reference to the timings on the first camera, Mr Mitchell's case and evidence is that between 19.36.44.714 and 19.36.47.654, give or take a few tenths of a second, while he and PC Rowland were behind or alongside the blastproof hut, he said under his breath but audibly:
"I thought you lot [or guys] were supposed to fucking help us."
[61]To which PC Rowland immediately responded:
"If you swear at me, I will arrest you."
[62]The exchange was over before either Mr Mitchell or PC Rowland reached the pedestrian gate. Apart from a parting remark as he exited the gate to the effect that, "We will return to this matter tomorrow", nothing more was said.[63]PC Rowland's case and evidence is that by reference to the same timings, the exchange took place between 19.36.46.694 and 19.36.57.114. It was broken into two parts. Between 19.36.46.694 and 19.36.50.594 Mr Mitchell said to him at conversational volume:
"Best you learn your fucking place. You don't run this fucking government. You're fucking plebs."
[64]By the end of the utterances Mr Mitchell had reached the pedestrian gate. Between 19.36.52.114 and 19.36.57.114, PC Rowland said to Mr Mitchell:
"Please don't swear at me, sir. If you continue to do so I will have no option but to arrest you under the Public Order Act."
[65]As he gave his warning, he opened the pedestrian gate by the foot pedal. As Mr Mitchell left he said:
"You haven't heard the last of this."
[66]There is no audio recording of this exchange and none of the three police officers nearby claims to have heard anything said by Mr Mitchell.[67]Mr Mitchell says it is not in his character to use such language to others, though he admits swearing on this and on other occasions. As to his character, it is favourably described in a number of witness statements whose evidence is unchallenged.[68]These fall into four broad categories with some overlap. Their descriptions are as follows in alphabetical order:[69]1. Friends.[70]Duncan Budge: A loyal and honest man who has not to his knowledge ever been rude to a stranger or used the word "pleb".[71]Sir Richard Ottaway MP: Honourable and truthful.

Lord Turner of Ecchinswell: He has a strong belief that people should be treated equally regardless of their background, income or political opinion.

[73]2. Colleagues.[74]Right Honourable Kenneth Clarke QC MP: Never dishonest or untruthful to his knowledge; a considerable public servant.

Lord Coe: A man of integrity who has never used the word "pleb" in his earshot.

[76]Matthew d'Ancona: "The most decent and honourable of men", who values loyalty and trustworthiness.[77]Right Honourable Lord Fowler, his predecessor as MP for Sutton Coldfield: He has shown no hint of class feeling.[78]Councillor Margaret Waddington JP: Known to mutter an oath, but never "pleb".[79]3. People who have encountered him as an MP and minister, especially as Secretary of State for International Development.[80]Justin Forsyth: Tenacious and principled.[81]Sir Bob Geldof: Open, frank and truthful. Despite being "no slouch" in the matter of swearing, has never used the word "pleb" in his earshot.[82]Jehangir Malik: Honourable, trustworthy, and good natured.[83]Isabel Oakeshott: Not high-handed or arrogant towards parliamentary staff; not a liar.[84]Sir Christopher Stone: Respectful, thoughtful and considerable.[85]General Sir Anthony Walker, his former commanding officer: Highly unlikely that he would talk down to anyone.[86]4. Others, including two senior police officers, with whom he has always dealt in a professional, courteous and trustworthy manner.[87]An attempt has been made to moderate this picture by evidence of an incident in 2005 outside the Palace of Westminster, when he may well have reacted aggressively to a somewhat forceful attempt to prevent him riding his bicycle the wrong way into the Palace exit; and of two trips as Secretary of State to Tunisia and Somalia.[88]On the first, he referred to a highly intelligent police protection officer as a "plod", in what was rightly taken by him to be a joke of no consequence.[89]In the second, he gave vent to a legitimate expression of anger when a decision, subsequently revoked, was made to cancel a long-planned trip to Mogadishu after the flight to the staging post, Kenya, had departed.[90]None of these incidents causes me to doubt the truth and accuracy of the evidence of Mr Mitchell's character and conduct referred to above.[91]If he did utter the words alleged, it would have been out of character for him to have done so.[92]It does not follow that he cannot have spoken them. Whether or not he did must be determined by careful analysis of the competing evidence about precisely what occurred, and when and where it did, in the 12.5 seconds between the point at which Mr Mitchell says he began to speak after leaving the vehicle gates, and the point at which PC Rowland says he stopped speaking, and of the evidence about what took place in the minutes following.[93]The first problem with Mr Mitchell's account is that it is inconsistent with what is shown on the CCTV footage. At 19.36.52.234/19.34.50, PC Rowland turned to face Mr Mitchell. His stance then and immediately afterwards is consistent with that of a man speaking to Mr Mitchell. At 19.34.51 Mr Richardson took his first step towards the pedestrian gate. At 19.36.52.874 Mr Richardson's shadow can be seen to move towards the pedestrian gate. Mr Richardson said in evidence, and I accept, that he did so because he heard PC Rowland say:
"Please don't swear at me."
[94]Whereupon he said to PCs Weatherley and Tupman:
"Hello, I think it's going off over there."
[95]And immediately walked towards the pedestrian gate. By the time he did so, on Mr Mitchell's account PC Rowland had not spoken for five seconds since 19.36.47.654. It is inconceivable that Mr Richardson delayed that long before setting off.[96]The words which he heard must have been uttered by PC Rowland at the pedestrian gate. On both accounts they preceded the threat to arrest. Mr Mitchell's account must, therefore, be out by at least five seconds.[97]On PC Rowland's account, Mr Mitchell started to speak at 19.36.46.694. By the time he turned to face Mr Mitchell at the pedestrian gate, 19.36.52.234, approximately five and a half second has elapsed. If Mr Mitchell started to speak when he, Mr Mitchell, says he did, the time elapsed would have been 7.5 seconds.[98]Expert evidence has been given about timings by two knowledgeable speech experts, Professors Peter French and Mark Liberman. Both have fulfilled their duty to the court as independent experts. Both have given an estimate of the bracket of time within which the words alleged to have been spoken by Mr Mitchell may have been uttered. There is not much between them. Both have compared the rate at which speakers in research samples, and Mr Mitchell on other recorded occasions, have spoken.[99]Measurement can be expressed either at syllables per second or as fractions of a second per syllable. For ease of understanding, both eventually explained their conclusions in syllables per second.[100]Both consider that the most reliable sample is that based on recordings of Mr Mitchell speaking. There are three recordings: one of a question and answer session at a London club; one in a recorded interview with Police Federation officers on 1 October 2012, and one of a television interview with Jon Snow on 26 November 2013.[101]Both, I think, believed that the third recording provides the most reliable sample, both because it included both short and long statements by Mr Mitchell, and because he was speaking with some vehemence.[102]The words alleged comprise 20 syllables. On Professor French's analysis, based on the average speaking rate throughout the Jon Snow interview and assuming no pauses between phrases, Mr Mitchell would have taken 4.2 seconds to speak them.[103]On Professor Liberman's analysis, based on passages of 20 or more syllables spoken continuously, which produce a slightly faster speaking rate than passages comprising significantly fewer syllables, it would have taken him 3.56 seconds.[104]If the words had been broken up into three passages, each interrupted by a short pause, the time required according to Professor Liberman would have been a bit less than five seconds. Thus the bracket of time required is of the order of 3.5 to a bit less than 5 seconds.[105]If Mr Mitchell did speak the words alleged, I am satisfied that he would have required a time nearer to the top than the bottom of the range. There are three distinct phrases, not a single sentence; a slight pause between them would have been natural. Further, in his email to Inspector Booth and others at 21.22 on 19 September, PC Rowland placed dotted lines between each phrase, possibly signifying a pause between them.[106]Absolute precision is impossible but I am satisfied that about 4.5 seconds would have been required to utter the words. This is consistent with a sort of re-enactment performed by PC Rowland when he spoke over CCTV footage as it was played at natural speed.[107]On the timings shown on the CCTV footage, taking the starting point identified by either PC Rowland or by Mr Mitchell, there would have been adequate time in which Mr Mitchell could have spoken the words alleged. There would also have been a pause of at least 1 second before PC Rowland spoke in response. Mr Rowland's account on this point is therefore not contradicted by objective evidence, unlike that of Mr Mitchell; it is consistent with it.[108]There are no recordings of PC Rowland speaking. Accordingly, Professors French and Liberman have nothing to go on to estimate his speech rate other than published research and their experience. Taking the average produced by the largest scale study so far undertaken, that of Tauroza & Allison of 1990, based on 59 speakers of British English, he has assumed the rate to be 4.39 syllables per second.[109]There are 31 syllables in the words which PC Rowland says he spoke. Assuming no pause between the end of Mr Mitchell's utterance and Mr Rowland's words, Professor French estimates that the time required is approximately 7 seconds: 11.2 seconds, his overall estimate for the whole exchange, less 4.2 seconds for Mr Mitchell's words.[110]Professor Liberman believes that he may have spoken a little more quickly. Based on a sample of 2,438 telephone conversations between strangers in 1993, the time required, including a short pause for breath, is 6.5 seconds.[111]If the words were spoken according to a well practised formula, the time taken could -- I emphasise could -- have been as little as 4.5 to 4.9 seconds. He took an average rate of 5.79 seconds.[112]I am satisfied that the best estimate which can be made is at the higher end of the range. PC Rowland does not claim to have issued Public Order Act warnings on a regular basis in the recent past, nor was this warning entirely standard, based as it would have been on his reaction to Mr Mitchell's swearing. I do not believe that PC Rowland could have spoken the words in less than about 6.5 seconds.[113]The point at which Mr Mitchell began to exit the pedestrian gate is 19.36.57.234, five seconds after PC Rowland turned to face Mr Mitchell at the gate, 19.36.52.234.[114]It is therefore at least unlikely that Mr Rowland could have spoken all of the words which he says he did in the time available.[115]Further, some of the words which he spoke were heard by other police officers. Mr Richardson heard him say:
"Please don't swear at me."
[116]And recorded as much in his countersigned notebook, made up between 8.30 and 8.45 pm that night.[117]PC Weatherley heard PC Rowland say:
"Please don't swear or I will arrest you."
[118]And recorded as much in her notebook, purportedly initialled by her, but not countersigned, at 19.47 that night.[119]It is unsurprising that Mr Richardson did not hear all of the words spoken because he told PCs Weatherley and Tupman that, "Something was going off over there", but as is shown on the Whitehall CCTV footage, he took only 5 seconds -- 19.34.51 to 19.34.56 -- to reach the small barrier outside the pedestrian gate as Mr Mitchell was exiting it. If PC Rowland had taken 6.5 seconds to say his piece, Mr Richardson must have heard the end of it.[120]This evidence satisfies me that PC Rowland did not speak all of the words which he says he did. While I am satisfied that he did request Mr Mitchell not to swear at him and did threaten to arrest him, I believe that he did so using fewer words. I cannot, of course, be sure, or even satisfied on the balance of probabilities, what precisely was said, but I believe it to have been something like the following: "Please don't swear at me, sir, or I will arrest you," with or without the words, "under the Public Order Act" at the end.[121]These words could have been spoken in the time available. At Professor French's rate of 4.39 syllables per second, the shorter version, which has 12 syllables, would have taken 2.8 seconds, and the longer, which has 20 syllables, 4.6 seconds.[122]It is just more likely than not that it was the shorter version or something like it which was uttered, because neither Mr Richardson nor PC Weatherley heard the Public Order Act mentioned.[123]On that analysis, an exchange in which Mr Mitchell spoke the words alleged by PC Rowland, to which he responded after a brief pause by a short threat to arrest him, could have been fitted comfortably into the minimum time likely to be available, 10.5 seconds, and obviously, even more comfortably into the maximum time available, 12.5 seconds.[124]It does not, of course, follow that merely because those words could have been spoken in the time available, they were.[125]Mr Mitchell was first confronted with the allegation that he had sworn at police officers and used the word "pleb" shortly after 2 pm on 20 September in the office of the Prime Minister's Chief of Staff, Ed Llewellyn. He admitted swearing but was adamant that he did not use the word "pleb". On every occasion since he has said the same, including several times and vehemently on oath in the witness box. He was not, however, in a state of mind at 7.35 pm on 19 September either to measure his words carefully or to remember precisely what they were.[126]Sir Jeremy Heywood, the Cabinet Secretary, was asked by the Prime Minister to investigate the incident after receipt of false allegations, made by Keith Wallis in an email to the Deputy Chief Whip John Randall MP at 9.52 pm on 20 September. He saw Mr Mitchell on 25 September.[127]In his report to the Prime Minister he said that Mr Mitchell admitted losing his temper. In his evidence in court, Mr Mitchell sought to draw a distinction between saying something in an ill-tempered way and losing his temper. This is hair-splitting and unconvincing. I am satisfied that he did lose his temper.[128]It is part of the common experience of life that the loss of temper can lead both to loss of inhibition in speaking and to an imperfect recollection of what was said.[129]In a conversation with John Randall MP on 24 September, Mr Mitchell said that he could not recall what he had said to the police officer. Mr Mitchell said in evidence that that was said by him, if he did say it -- which he accepts that he may well have done -- because he wished to close down any discussion with Mr Randall about the incident. I accept that he wished to do so but not that he would do so by telling a flat lie to his deputy. I am satisfied that what he said was substantially true: he could not remember what he had said.[130]A similar statement to like effect made on 17 October to Michael Fabricant MP, because it was made three weeks later, is of much less significance.[131]It follows that Mr Mitchell's adamant denial of uttering the words alleged is not of itself determinative of the issue. Only a careful analysis of the evidence of the police officers in Downing Street on 19 September, in particular that of PC Rowland, can resolve it. It must begin with an assessment of PC Rowland as a man and a witness.[132]He gave evidence for about five hours, for most of which he was subjected to a skilful and searching cross-examination. His conduct and truthfulness have been squarely challenged. He impressed me as a rather old-fashioned police officer. He was determined to do his duty as he saw it, whoever it might inconvenience. He knew what his duty was, to maintain the security of Downing Street by upholding the policy which he believed applied.[133]He is not an imaginative man. He can be inflexible when challenged, both on duty and in the witness box, and defensive when he believed himself to be the subject of criticism, actual or prospective.[134]He was and is well suited to his job, an armed uniform protection officer, and has performed it for 24 years without any adverse disciplinary finding against him.[135]He is not the sort of man who would have had the wit, imagination or inclination to invent on the spur of the moment an account of what a senior politician had said to him in a temper.[136]If what Mr Richardson and PCs Weatherley and Tupman said in evidence and recorded in their notebooks is true, PC Rowland told them within seconds of Mr Mitchell's departure the substance of what he had said. The CCTV footage shows that, having closed the pedestrian gate, PC Rowland went to speak immediately to PCs Weatherley and Tupman. They were joined soon after by Mr Richardson outside the vehicle gates.[137]PC Weatherley said in evidence that PC Rowland said to them:
"He just called us fucking plebs and we should know our fucking place."
[138]She made a note of precisely those words in her police notebook, timed at 19.47, eight minutes after the incident had ended.[139]PC Tupman said in evidence that PC Rowland said that Mr Mitchell had called him a "fucking pleb". He made a note of those words in his police notebook before he went off duty at 6 am on 20 September.[140]Mr Richardson said that PC Rowland said that Mr Mitchell had said:
"Best you learn your fucking place. You don't run the fucking government and you are fucking plebs."
[141]He made no note of those words in his police notebook. He did, however, suggest that PC Rowland should telephone their base sergeant, Sergeant Mills.[142]The CCTV footage shows three of the four police officers talking to each other for about 40 seconds, joined by Mr Richardson, about half way through. It had to be about the incident which had just occurred. PC Rowland can be seen gesticulating. He then returned to the police hut and at 19.36 in real time telephoned or attempted to telephone someone on the cordless telephone kept in the hut.[143]He held that telephone to his ear for about 40 seconds, during which time he let a civilian security officer out of the pedestrian gate. He has no recollection of the call or to whom it was made. Telephone records have not established the number called.[144]At 19.37.23 real time he made a telephone call on his mobile telephone lasting 3 minutes and 41 seconds, to the base sergeant, Sergeant Mills. In his evidence Sergeant Mills said that PC Rowland told him that he had given a Public Order Act warning to the Chief Whip, who had sworn at him and called him a "fucking pleb". As he cycled off he said:
"You haven't heard the last of this."
[145]Sergeant Mills told him and everyone who had witnessed the incident to make notes or statements immediately. At some stage before PC Rowland and the police officers on the gate left for APEX House in a police van shortly after 8 pm, PC Rowland did so. His note reads:[146]"Chief Whip Andrew Mitchell: 'Best you learn your fucking place, you don't run this fucking government, you're fucking plebs'."[147]At 19.39 PC Williams, having operated the vehicle blocker to let a car out of Downing Street, walked down to the Whitehall gates from his police hut and spoke to the police officers there. According to him, he also spoke to PC Rowland, an event which occurred after the CCTV footage ended. His evidence was that PC Rowland told him that Mr Mitchell had sworn at him and called him a pleb. Shortly before 8 pm PC Rowland went up to 10 Downing Street and spoke to the police officer on duty outside it, PC Wigger.[148]According to a witness statement made in the course of a police investigation into the incident known as Operation Alice, on 17 December 2012, he said that PC Rowland had said to him that Mr Mitchell had sworn at him and said words including "fucking" and "you don't run the country".[149]In the police van, during the five minute journey back to APEX House, PC Joyce, who had been in the search hut when the incident occurred, said that PC Weatherley and PC Rowland explained to him what had happened. PC Rowland said that Mr Mitchell had said to him as they were walking to the pedestrian gate:
"When are you lot going to realise you don't run this fucking country, you're fucking plebs."
[150]And also said:
"Best learn your place."
[151]Meanwhile, Sergeant Mills telephoned Inspector Booth, recently promoted inspector of the team deployed in Downing Street on the night of 19 September, to tell him what PC Rowland had said had happened. He asked Sergeant Mills to get PC Rowland to telephone him. He did so between 8 and 9 pm. PC Rowland told him that Mr Mitchell had called the police officers "fucking plebs". Inspector Booth told him to email him with the details of what had happened. He did so from APEX House at 9.22 pm. The email reads:[152]"Sirs and Sergeants, "Whilst on duty at D3B tonight, Wednesday 19 September, on a 1400 to 2200 hours, between the hours of 1800-2000, I had to deal with a man claiming to be the Chief Whip and whom I later confirmed to be such and a Mr Andrew Mitchell.[153]"Mr Mitchell was speaking to PC Gill Weatherley, demanding exit through the main vehicle gates into Whitehall. PC Weatherley explained to Mr Mitchell that the policy was for pedal cycles to use the side pedestrian exit. Mr Mitchell refused, stating that he was the Chief Whip and he always used the main gates.[154]"I explained to Mr Mitchell that the policy was to use the side pedestrian gates and that I was happy to open those for him but that no officer present would be opening the main gates as this was the policy we were directed to follow. Mr Mitchell refused, repeatedly reiterating that he was the Chief Whip.[155]"My exact explanation to Mr Mitchell was:[156]"'I'm more than happy to open the side pedestrian gate for you, sir, but it is policy that we are not to allow cycles through the main vehicle entrance.'[157]"After several refusals Mr Mitchell got off his bike and walked to the pedestrian gate with me after I again offered to open that for him. There were several members of the public present, as is the norm, opposite the pedestrian gate and as we neared it, Mr Mitchell said:[158]"'Best you learn your fucking place ... you don't run this fucking government ... you're fucking plebs.'[159]"The members of the public looked visibly shocked and I was somewhat taken aback by the language used and the view expressed by a senior government official. I cannot say if this statement was aimed at me individually or the officers present or the police service as a whole.[160]"I warned Mr Mitchell that he should not swear and if he continued to do so I would have no option but to arrest him under the Public Order Act, saying:[161]"'Please don't swear at me, sir. If you continue to, I will have no option but to arrest you under the Public Order Act.'[162]"Mr Mitchell was then silent and left, saying, 'You haven't heard the last of this', as he cycled off.[163]"I forwarded this to you as all officers were extremely polite to Mr Mitchell but such behaviour and verbal expressions could lead to the unfortunate situation of officers being left no option but to exercise their powers. I write this for your information as Mr Mitchell's last comments would appear to indicate he is unhappy with my actions. I have recorded all this fully in my pocket notebook."[164]He had done so, more or less to the same effect, save in one respect. In his police notebook he said that Mr Mitchell had spoken the words, "as we got to the gate", ie the pedestrian gate. If this evidence is true, it leaves little room for doubt about what Mr Mitchell said.[165]The witnesses who have given it, apart from PC Joyce who was not required to attend for cross-examination, have been subjected to searching and, as always, skilful cross-examination. Mr Mitchell's case, as advanced by Mr James Price QC, is that once PC Rowland had threatened to arrest Mr Mitchell, a cabinet minister, the gravity of what he had done dawned upon him and he, perhaps aided by the other three police officers on the Whitehall gates, invented the words alleged to have been spoken by Mr Mitchell to justify the threat and forestall any adverse consequences for PC Rowland.[166]The principal, though not only, foundation for this attack is the evidence given by PC Rowland about the reaction of members of the public in Whitehall to the incident. He said in his evidence, police notebook and email to Inspector Booth that members -- plural -- of the public looked visibly shocked.[167]The CCTV footage from outside Downing Street shows that this perception and evidence was wrong. The only person shown on the footage to have been close enough to the Whitehall gates to see and hear what was going on was a young man with a back pack, who seems to have been part of a family group of three others who were out of shot when the incident occurred.[168]It would have been possible for PC Rowland to have seen him and to have seen his reaction. Two women walked across the front of the gates near to the roadway. One of them glanced twice towards the gates. She was too far away for PC Rowland to have perceived any reaction in her facial expression and he could see her in any event only in his peripheral vision, part of his field of vision, which would not, on the expert evidence, have permitted him to discern a facial expression.[169]It is possible that one or more of the three persons who were out of shot might have seen or heard what was going on. PC Weatherley noted in her police notebook and gave evidence that one of them looked towards the pedestrian gate with an expression which I would describe as surprise rather than alarm, but if she did, she did not say anything about it to Mr Richardson, who spoke to the group of three, including, presumably, that person, only moments later.[170]PC Tupman noted that he saw members of the public but did not note that they were shocked. Mr Richardson, who was in the best position to see, neither noted in his police notebook that members of the public were shocked, nor said so in his evidence.[171]Expert evidence has been given about this issue, which takes the matter little further beyond explaining the limits of peripheral vision, although both experts fulfilled their duty to the court.[172]I am not convinced that PC Rowland did see members of the public or even a member the public visibly shocked. More fundamentally, there never was any basis for issuing a warning of arrest under section 5 of the Public Order Act 1986.[173]For an offence to have been committed, Mr Mitchell must have used threatening, abusive or insulting words or behaviour within the sight or hearing of a person likely to be caused harassment, alarm or distress. Swearing at a police officer was not by itself enough. Given that the gates of Downing Street were secure, no member of the public outside could have been caused harassment or alarm by words said inside. It is possible that a member of the public of sensitive disposition might have been caused distress by hearing swearing, but a far more likely reaction would have been surprise and curiosity. PC Rowland would not have been justified in arresting Mr Mitchell and acted unwisely in threatening to do so.[174]I am satisfied that he made the threat because he was taken aback by the words uttered by Mr Mitchell and the manner in which they were spoken, forcefully and in temper. PC Rowland told me that it was the repeated use the word "fucking", not the words to which that word gave emphasis, including "plebs", which caused him to give the warning. Having given it, I believe that he and his fellow police officers on the gate soon became concerned about the possible repercussions for him, hence Mr Richardson's advice to telephone the base sergeant, and the limited support given to his claim to have seen the reaction of members of the public by PCs Weatherley and Tupman.[175]Embellishment of a true account by a police officer on the defensive is, of course, not acceptable, but it is understandable if done for that purpose. Invention of the core account would be misconduct of quite a different order.[176]Mr Price submits that inconsistencies in the account which PC Rowland has given undermine his credibility to the point at which I should conclude that he, unaided, or with the help of the three other police officers at the gate, did fabricate the words. There have been inconsistencies and one gap in his account, of which the following are the most significant examples.[177]1. In his police notebook completed after he returned to APEX House, he wrote:
"As we got to the gate ..."
In other words the pedestrian gate:
"... Mr Mitchell said, 'Best you learn your fucking place ...'."
Et cetera.[178]Whereas in his email to Inspector Booth at 21.22 he said that Mr Mitchell spoke, "as we neared it", ie the pedestrian gate.[179]And in his interview by Sergeant Coles during the Operation Alice investigation on 6 January 2013 he said it happened, "as we walked across", ie the pavement leading to the pedestrian gate:
"It's between ... as we walk across and there, but I can't say, I'm really sorry."
[180]His account in evidence as noted was that Mr Mitchell had finished speaking by the time that he, PC Rowland, arrived at the pedestrian gate.[181]2. In evidence he said that he made the entry in his police notebook, in which he sets out the words used by Mr Mitchell between the first unexplained telephone call and that made to Sergeant Mills at 19.37.23. The CCTV footage shows, as he accepted in cross-examination, that he could not have done.[182]3. The first telephone call remains unexplained.[183]4. He said he had gone to 10 Downing Street after the incident to confirm Mr Mitchell's identity with the custodians and thought he had done so. The undisputed evidence of one of them, Mr Wilds, is that they did not have a photograph of Mr Mitchell so that PC Rowland could not have confirmed his identity by that means.[184]I acknowledge that these inconsistencies and gap do exist but they do not demonstrate that PC Rowland's account of the incident is fabricated. These inconsistencies are the sort which inevitably occur when a witness has given an account on several different occasions about an incident which arose unexpectedly and lasted for no more than 3 minutes and 20 seconds, from the moment that Mr Mitchell left his office to the time at which he exited the gate.[185]As to the gap, PC Rowland's inability to say to whom his first telephone call was made, there can be nothing sinister in it. A suggestion was made by Mr Price that PC Rowland may have switched from an official telephone to his mobile telephone to avoid the automatic recording of what he said to Sergeant Mills. Sergeant Mills gave the uncontradicted answer to that: neither were recorded.[186]A plausible explanation is that PC Rowland did, as instructed by Mr Richardson, attempt to telephone Sergeant Mills on the official telephone but failed to get through. Alternatively, he might have telephoned the custodians in 10 Downing Street. The truth will never be known but it doesn't matter.[187]I do not hold the inconsistencies and this gap against PC Rowland any more than I would take into account against Mr Mitchell the inconsistencies in matters of detail in his account, which Mr Desmond Browne QC has demonstrated in his cross-examination and closing submissions.[188]For Mr Mitchell's case, which is that PC Rowland's police notebook entry is false, to be right, the following propositions would have to be true if he alone is the source of a false story:[189]1. He would have to have heard Mr Mitchell mutter audibly, but at a point behind the police hut, which no member of the public in Whitehall could possibly have heard him:[190]"I thought you lot were supposed to fucking help us."[191]2. He would then in an instant have decided to make a threat to arrest him, a threat which he knew had no legal basis.[192]3. He would then within seconds have invented words not spoken by Mr Mitchell and relayed them with convincing gesticulation to give emphasis to them to PCs Weatherley and Tupman, and then to Mr Richardson, and then to his sergeant make a false report.[193]I have already stated that I do not believe PC Rowland to have had the wit, imagination or inclination to invent the words, still less to perform the pantomime which their invention would require. It is also significant that his actions after the event do not sit well with his having done so.[194]PC Weatherley said that when PC Rowland told them about what Mr Mitchell had said, she wanted to make a complaint about it, but he did not:
"No, I have dealt with it. Leave it at that."
[195]In a recorded telephone call to Sergeant Shaun Jones, almost certainly at 08.58.32, on 20 September, he said that:
"Everybody seems angrier about it than me. I just was a bit disappointed really."
[196]When Mr Mitchell apologised to him by telephone on the afternoon of 20 September, a call overheard and noted by Chris Martin, principal private secretary to the Prime Minister, he thanked Mr Mitchell and said that it was the first time in 20 years that he had received an apology. He did nothing to help or encourage those who wished to harm Mr Mitchell or further the cause of the Police Federation in its dispute over pay and conditions with the government.[197]The suggestion that he was doing so, by sending a copy of his email to Inspector Booth of 21.22 on 19 September to PC Watson at the request of the latter, is a makeweight, even if PC Watson did speak about the incident to PC Glanville when the latter was gathering information to give to The Sun on the evening of 20 September. I have heard nothing to call into question the conclusion of the Operation Alice investigators that PC Rowland had nothing to do with the leaking of the incident to The Sun.[198]If PC Rowland did not invent the words on his own, the only possible way in which they could have come into existence is, as Mr Price suggested in his closing submissions, by collusion between him and the three police officers on the gate, before the telephone call to Sergeant Mills at 19.37.23, or by a process of fabrication which began then and was concluded by the time the shift departed Downing Street in the van shortly after 8 pm.[199]That requires me to assess the truthfulness of Police Constables Weatherley and Tupman and of Mr Richardson. PC Weatherley has been summarily dismissed from the Metropolitan Police service as a result of what happened after the incident. She obtained from PC Rowland a copy of the email which he sent to Inspector Booth, and on 20 September at 19.01.02, sent a topped and tailed photograph of it to PC Glanville. He had already disclosed details of the incident, which he gleaned at APEX House in the hour or so following the return of the policeman from Downing Street, to The Sun in an 11-minute telephone call beginning at 21.20 on 19 September.[200]She made no mention of doing so when interviewed during Operation Alice or in the witness statement she made for that investigation. She claimed instead that no one else had had "access" to the email. The disciplinary panel found her actions to have been a serious dereliction of duty and her evidence to have been in part dishonest. She was summarily dismissed despite 24 hours of unblemished service and glowing testimonials from colleagues and superiors.[201]I do not intend to go behind the panel's findings; however with the reservation that I have explained about her observation of the position of a member of the public and her reaction to the incident, I am satisfied that she has told me the truth about the incident and its immediate aftermath.[202]She gave her evidence clearly and calmly, and without rancour or emotion, despite the fact that it was Mr Mitchell's conduct which led to the events which resulted in her dismissal.[203]Her later actions may in part be explained by her wish, frustrated by PC Rowland's refusal, to make a complaint about Mr Mitchell's conduct.[204]Her police notebook has come under close scrutiny. It was made up using two different black biros. She said that she made the entries in the police hut opposite the vehicle blocker after PC Williams had swapped positions with her at about 7.40 pm. I am satisfied that they did swap and that she did go to the hut.[205]Her note reads:
"Chief Whip argues to be let out via vehicle gate. I instruct him to use side gate as are instructions via Inspector Roberts. Toby, 457D, Roger Tupman, 618D, present. I heard Toby saying, 'Please don't swear or I will have to arrest you'. At this time there are numerous members of the public by ped [pedestrian] gate."
[206]There is then a line and her initials.[207]PC Weatherley said that she had used two pens because she put one down before completing her note. Mr Price suggested that the second part of the note was made later and that the time at the foot of it is false. I reject that submission. It requires that PC Weatherley deliberately falsified her police notebook and has lied about the circumstances in which she made the note. I do not believe that she is capable of such serious dishonesty.[208]Further, as I will demonstrate, unless the four police officers were exceptionally subtle conspirators, it is surprising that her note of what happened does not fully support the allegedly false account. The second part reads:
"As Toby returned us, he said, 'He just called us fucking plebs and we should know our fucking places'. After a short discussion I went to D4 post to make my pocket notebook entry."
[209]There is then a time, 19.47 and a date, 19/9/2012, and her initials.[210]There is no mention of shocked members of the public and none of the words, "You don't run the fucking government", in her note.[211]I am satisfied that her note is a genuine contemporaneous note of what happened. It provides powerful support for PC Rowland's account and to PC Weatherley's evidence about what occurred.[212]For the sake of completeness, I deal with three occurrences which have at times during the case been suggested to call into question PC Weatherley's motives:[213]1. She asked PC Rowland to send her a copy of his email to Inspector Booth. The fact that she later photographed it and sent it to PC Glanville may have signified that she had it in mind to make use of it later for a purpose other than performance of her duty, as the panel found. But on balance I believe that she did not have such a purpose in mind when she asked PC Rowland to send it to her, and simply wanted his report of what had happened because if she were to be asked about it when off duty on the following day, she wished to have a complete account.[214]2. On 21 September, at 19.50.20, she sent a text to PC Robb, a fellow officer in the Diplomatic Protection Group, saying:
"This will make you feel better. I am the officer that stopped the Chief Whip leaving Downing Street on Wednesday. He didn't swear at me but Toby that let him out the side gate. I could topple the Tory government."
[215]This followed a "get well soon" text message at 18.48 from her to PC Robb.[216]I accept that the comment at the end was a joke reflecting the coverage of the incident in The Sun that morning.[217]3. On 23 September, beginning at 17.21, she had a 22-minute telephone call with PC Rowland. She and PC Rowland said, and I accept, that it was about mutual support following the media storm which had broken on 21 September. I can conceive of no sinister purpose which it might have served and none was suggested.[218]I am satisfied that PC Tupman was a truthful witness. He gave his evidence in a straightforward manner and was careful to state no more than what he remembered seeing and hearing clearly. As in the case of PC Weatherley, his police notebook entry does not contain all of what PC Rowland says he told him about what Mr Mitchell had said, that:
"He had just warned him that he would be arrest for public order as he was swearing at him and called him a 'fucking pleb'."
[219]Again, this suggests a lack of collusion, rather than collusion. I can see no reason to doubt his evidence, even the police notebook entry that several members of the public were stood outside the gate during the incident. It is no more than a marginally mistimed observation. There were several people immediately outside the gate immediately after the incident, who can be seen looking in at the four police officers discussing what has happened.[220]Again, for the sake of completeness, I deal with a proposition put to PC Tupman by Mr Price. As PC Rowland and Mr Mitchell left the front gate, PC Tupman can be seen to turn his head to the right, as if looking in their direction. Mr Price suggested that that was because he had heard something said. He has no recollection of doing so and I am satisfied would have made an appropriate entry in his police notebook if he had done so. I am satisfied that whatever attracted his attention, it was not words spoken by either Mr Mitchell or PC Rowland, which he could hear.[221]Of all of the witnesses to the incident, Mr Richardson was and is the most objective. He was within three weeks of retirement, after 30 years of unblemished police service.[222]After the press storm broke, he wrote an impressive letter to Chief Superintendent Tarrant, the officer in command of the Diplomatic Protection Group.[223]He wrote to complain about the lack of response by senior officers to the incident, which he said had allowed the Police Federation to hijack the issue. He said that a concise and correctly worded press release should have been made quickly, which would have prevented the media "feeding frenzy".[224]He produced an eminently sensible draft. He also made the justified complaint that senior officers had not passed on PC Watson's email about the incident on 18 September to the police officers on gate duty on 19 September.[225]His letter concluded with two significant comments:
"I saw on TV both National and Metropolitan Federation representatives stating that officers concerned are 'comfortable with the version printed in Friday's Sun newspaper'. I am not comfortable, nor had I been asked. Descriptions such as 'rant', 'explode with fury', and 'furious rant at WPC', I consider to be gross exaggerations. Most of this reporting is also, in my opinion, grossly unfair to Mr Mitchell. Could there not have been a response by the Metropolitan Police? Did the absence of a comprehensive account of the matter leave us unable to issue any clarification?"
[226]And:
"Where did The Sun get their information from? With the matter recorded correctly and as directed on Wednesday evening, there appears to have been a serious breach in confidentiality by the time of The Sun's print run on Thursday night. Does this not question the very integrity of the DPG?"
[227]Both comments were justified. The first showed that he had kept a sense of balance and perspective. It shows that he had no animus against Mr Mitchell or wish to promote any agenda of the Police Federation.[228]The second comment is made the more powerful by the first. An honest and level-headed police officer told his commanding officer that the matter had been correctly recorded as directed by Sergeant Mills and Inspector Booth on 19 September and by necessary implication from the words, "There appears to have been a serious breach of confidentiality", that what had been correctly recorded had been disclosed to The Sun; in other words, what had been leaked was true.[229]His own note did not record what PC Rowland said Mr Mitchell had said to him because he regarded it as a minor incident and because PC Rowland would make his own note. However, as he said in evidence in re-examination, Gill Weatherley had shown him a copy of PC Rowland's report, in other words his email to Sergeant Norton, on the night of 19 September. It was that report on which he relied to refresh his memory when he made his witness statement for the purpose of Operation Alice on 17 December 2012.[230]I quote the answer which he gave in cross-examination verbatim: "Answer: I wrote them down because I recollect I remembered that that was what Toby said when I saw his report.[231]"Question: Well, that's what I'm asking you. You didn't write that down from memory, did you?[232]"Answer: Not from complete memory, absolutely not, no.[233]"Question: No, you copied it out of another document?[234]"Answer: Believing that that was the correct words, yes. I don't know about another document."[235]Mr Richardson is not the sort of man who would put his name to a witness statement or give sworn evidence to support a former colleague if he had any doubt about its truth or accuracy. I am satisfied that he knew that PC Rowland's email description of the words used by Mr Mitchell was correct and that his evidence that PC Rowland relayed this to his Whitehall gate colleagues immediately after the incident is both truthful and correct.[236]The notion that Mr Richardson was involved in a conspiracy to create a false account or even to exaggerate or distort the truth is, in my judgment, absurd. I accept his evidence without reservation.[237]No relevant criticism has been made or could be made of the four other police officers who were informed about the incident within 20 minutes of its occurrence by PC Rowland: Williams, Wigger, Joyce and Mills. They lend reliable support to the account of the police officers on the gate.[238]For the reasons given, I am satisfied at least on balance of probabilities that Mr Mitchell did speak the words alleged or something so close to them as to amount to the same, including the politically toxic word "pleb". It's not necessary for me to go into how the story reached and was handled by 10 Downing Street; how it came to be leaked to The Sun; the discreditable conduct of some police officers in doing so, or the lies told by one, Mr Wallis, and by the partner of another. None of this could affect the firm conclusion which I have reached about what happened at the gates.[239]I'm going to rise now to enable the court to be cleared of those who wish to leave. I will sit again in ten minutes.