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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Duckenfield & Anor, R (on the application of) v Director Of Public Prosecutions [1999] EWHC Admin 286 (31st March, 1999) URL: http://www.bailii.org/ew/cases/EWHC/Admin/1999/286.html Cite as: [2000] WLR 55, [1999] EWHC Admin 286, [2000] 1 WLR 55 |
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1. These
are linked applications for judicial review which require the court to revisit
the terrible disaster which took place at the Hillsborough Football Ground at
Sheffield on 15 April 1989. In what I will call the first case the applicants
Mr Duckenfield and Mr Murray (to whom I will refer as “D” and
“M”), who are retired police officers, seek leave to move for
judicial review of the decision of the Director of Public Prosecutions
(“the DPP”) to refuse to take over and discontinue private
prosecutions which have been instituted against them by Ann Adlington
(“AA”) on behalf of the Hillsborough Family Support Group
(“the HFSG”). The decision was communicated by letter of 18
December 1998. On 15 March 1999 Latham J adjourned the leave application to 22
March 1999 and directed that the parties should then be ready to proceed with
the substantive application if leave were granted. On 22 March this court
granted leave and proceeded at once to hear the
inter
partes
application.
In the second case the Chief Constable of South Yorkshire (“the
CCSY”) seeks to challenge a decision of the South Yorkshire Police
Authority (“the SYPA”) made on 5 February 1999 to the effect that
it lacked the legal power to fund the defences of D and M to the private
prosecutions brought by AA, or to fund their prospective judicial review
applications against the DPP. On 12 February 1999 Latham J granted leave to the
CCSY, joined AA as second respondent, abridged time and ordered expedition. On
24 March 1999 this court (having reserved judgment in the first case the
previous day) granted leave to D and M to challenge the same decision and,
again, proceeded at once to hear the
inter
partes
application.
We now deliver our judgments in both cases.
2. I
will first set out the facts material to the first case, which also form the
necessary background to the second. I will later describe the further facts
which are specifically relevant to the second case.
3. The
football match at Hillsborough on Saturday 15 April 1989 was the FA Cup
semi-final between Liverpool Football Club and Nottingham Forest Football Club.
In the events which happened 96 people lost their lives. The Divisional
Commander in charge of police operations at the match was D, then holding the
rank of Chief Superintendent in the South Yorkshire Police Force. The second
applicant, then Superintendent Murray, held the position of Sub-Divisional
Commander and was also on duty at the match.
4. On
17 April 1989 Taylor LJ, as he then was, was appointed by the government to
conduct a public inquiry into the disaster. He heard the oral testimony of 174
witnesses between 15 May and 29 June 1989, and presented an interim report on 4
August 1989. He found that the immediate cause of the gross overcrowding which
had taken place, and thus of the disaster, had been the failure to cut off
access to the central pens behind the goal (which were already overfull) when
Gate C was opened. He found also a number of contributing factors including the
condition of the ground, police planning, police operations on the day, and the
interaction of parties responsible for safety issues. Lord Taylor’s final
report was delivered on 18 January 1990 and included a number of
recommendations relating to crowd control and safety at sporting events.
5. Meanwhile,
immediately after the disaster, the West Midlands Police had been appointed to
conduct a review of the policing operations of the South Yorkshire Police. In
March 1990 the West Midlands Police reported to the DPP. After taking the
opinion of two experienced leading counsel the DPP announced on 30 August 1990
that in his view there was insufficient evidence to justify any prosecution for
a criminal offence, relating to the disaster, against any member of the South
Yorkshire Police Force. Then from November 1990 to March 1991 HM Coroner for
South Yorkshire conducted an inquest into the deaths in the course of which 230
witnesses gave evidence. On 28 March 1991 the Coroner’s jury returned
verdicts of accidental death.
6. Disciplinary
proceedings for neglect of duty were instituted against D and M by the Police
Complaints Authority (“the PCA”). But D retired from the Force on
10 November 1991 on medical grounds, and so the proceedings against him fell
away. On 13 January 1992 the PCA decided not to proceed with the case against
M. On 27 August 1992 he too retired on medical grounds. Then on 5 November 1993
the Divisional Court dismissed an application for judicial review brought by
family members of those who had died, refusing orders of
certiorari
to
quash the inquest verdict and to require a fresh inquest to be convened.
7. On
5 December 1996 a documentary programme called “Hillsborough” was
broadcast on ITV. The programme suggested that fresh evidence about the
disaster had come to light. The allegations made in the broadcast were
investigated by the Crown Prosecution Service between March and May 1997. At
length on 30 June 1997 the Home Secretary announced in Parliament that an
independent scrutiny would be undertaken by Stuart-Smith LJ in order to
ascertain
inter
alia
whether
there was evidence relating to the disaster which had not been available to
Lord Taylor, or to the DPP or the Attorney General for the purposes of their
discharge of their statutory responsibilities. Stuart-Smith LJ’s report
was presented to the House of Commons on 18 February 1998. Chapter 1 paras
55-57 state:
9. On
the same day, 18 February 1998, the Home Secretary announced in the House that
he, the Attorney General and the DPP had very carefully considered Stuart-Smith
LJ’s report, and said: “We have no reason to doubt his
conclusions”.
10. The
HFSG was clearly not satisfied with this result. There was first an abortive
attempt on 26 June 1998 by AA to institute criminal proceedings against D and M
in the South Sefton Petty Sessional Division. That was given its quietus on
technical or jurisdictional grounds into which it is unnecessary to go. Then on
13 July 1998 Miss Adlington laid informations against them before the Leeds
Petty Sessional Division, and summonses were accordingly issued by the
Stipendiary Magistrate. The charges accuse D and M of the manslaughter of two
of those who died at Hillsborough, John Anderson and James Aspinall. They also
allege against both an offence of “wilful neglect to perform a public
duty”; and in the case of D, a further offence of attempting to pervert
the course of justice, said to consist in his having lied about the
circumstances in which Gate C at the football ground became open.
11. Both
D and M made representations to the DPP that he should exercise his power under
s.6(2) of the Prosecution of Offences Act 1985 (“the POA”) to take
over the conduct of the proceedings initiated against them, and then
discontinue the proceedings under s.23(3). In order to appreciate the contrary
positions being taken and the issues in the case, it is convenient to set out
the relevant statutory provisions at this stage.
15. Representations
had first been made to the DPP on behalf of D and M in early July 1998, after
the commencement of the proceedings in the South Sefton Petty Sessional
Division which proved abortive. In the course of correspondence the HFSG again
contended that it had discovered new evidence, which, it was said, had not been
before Lord Taylor, the DPP, the Coroner, or Stuart-Smith LJ. At length, after
AA’s informations had been laid in the Leeds Petty Sessional Division,
the considered views of the DPP as to the approach to be taken to a request to
take over and discontinue a private prosecution were set out in a letter to the
HFSG on 27 July 1998. The letter did not contain a decision, but it explained
the DPP’s policy:
16. There
followed very substantial representations from D and M and from the HFSG. At
length the DPP communicated his decision not to intervene, as I have said by
letter of 18 December 1998. The letter merely stated:
17. The
respective solicitors for D and M asked for reasons to be given. There followed
a letter of 1 February 1999 (the “reasons letter”) from the
CPS’ Casework Director to M’s solicitor from which it is necessary
to cite at some length:
18. The
private prosecution of D and M presently stands adjourned in the
magistrates’ court. Committal proceedings were due to commence on 19
April 1999. But we understand that date has been vacated. There is a directions
hearing fixed for hearing later in April. The matter was earlier before the
magistrates’ court on 21 December 1998, an occasion to which I should
refer because Mr Jones QC for AA contends that the applications in the first
case have not been made promptly, as Order 53 and the Supreme Court Act 1981
require (Mr Havers QC for the DPP likewise so contends but only in relation to
the assault which is directed to the legality of the DPP’s policy; he
says, as is plainly the fact, that D and M had notice of the policy by the
letter of 27 July 1998). On 21 December it is said by AA that Mr Harrison QC
for D and M indicated his clients’ intention to seek leave to bring an
application for judicial review against the DPP’s decision, whatever the
reasons for it (the reasons had not, of course, by then been supplied). Mr
Jones contends that the application for judicial review could and should have
been lodged then or very shortly thereafter. There is an issue as to the
context in which Mr Harrison said what he said to the magistrate. It is clear
from an affidavit sworn by M’s solicitor Mr Manning that Mr Harrison took
the view (as, if I may say so, one would expect) that he would have to consider
the DPP’s written reasons before finally advising as to a judicial
review. As at 21 December 1998 a reasons letter was expected before Christmas,
and Mr Harrison so informed the magistrate. In the event the reasons were not
delivered until 1 February 1999. These applications were lodged in the Crown
Office on 1 and 5 March 1999.
19. In
my judgment there is nothing in the delay point. It would have been
irresponsible to seek judicial review leave before the DPP’s reasons were
available. And the letter of 27 July 1998 could not have been a proper trigger
to seek leave; it contained no decision. It is true that a challenge only to
the legality of the policy need not strictly have awaited the DPP’s
reasons for applying it as he decided to do; but since D and M, very obviously,
were at least as interested in the application of the policy as in its
legality, overall it was perfectly proper and reasonable to wait for the
reasons letter before lodging any application for leave.
20. I
may now turn to the substantive arguments in the first case. The lead skeleton
argument is that prepared on behalf of M, which is adopted by D who adds
further submissions to challenge the distinct decision of the DPP not to take
over and discontinue the charge against him of attempting to pervert the course
of justice. To that I will come in due course.
21. The
applicants’ first submission is that the DPP’s decision fails to
pay any regard to his duty under s.3(2)(b), which I have set out. It is put
thus at #2.6 of the skeleton argument:
22. In
the course of his oral submissions Mr Harrison expanded this argument. He
submitted that in deciding whether to take over and discontinue a private
prosecution where the case is one of “importance or difficulty”,
the DPP should bear in mind that it is ordinarily his duty to institute and
conduct such proceedings. Accordingly, as I understand it, the suggestion is
that the DPP should in some way entertain a heightened concern where such a
private prosecution is launched, and his policy in relation to the potential
discontinuance of such cases under s.23(3) should reflect this; presumably (for
otherwise I cannot see how the argument can assist Mr Harrison) by leaning more
favourably towards discontinuance than in other classes of case.
23. In
my judgment this is a bad argument. S.3(2)(b) speaks only of the
institution
of proceedings by the DPP; contrast s.3(2)(a), (c), and (d), which require him
to
take
over
proceedings.
Plainly the DPP would not institute proceedings with a view to discontinuance.
Moreover, as Mr Havers submitted, had it been the legislature’s intention
to require the DPP to treat “important or difficult” cases in a
different way from others for the purposes of ss.6(2) and 23(3), it could have
readily so provided and it is to be supposed would have done so. In my judgment
the right of private prosecution preserved by s.6(1) is in no way qualified by
s.3(2)(b), which has nothing to do with the discretion to take over such a
prosecution under s.6(2) with a view to discontinuance under s.23(3). I
consider that this conclusion is lent support by the decision of the Divisional
Court in
R
v Bow Street Stipendiary, ex p. South Coast Ltd
[1993]
2 WLR 621, in which Lloyd LJ, as he then was, said at 624:
24. Mr
Harrison’s second submission was that the right to maintain a private
prosecution essentially operates as a constitutional safeguard in cases where
there is some suggestion of “inertia, partiality or improper
action” by the public prosecutor; and the implication is that where
nothing of that kind is present, the DPP should lean towards intervention to
stop the prosecution. Mr Harrison relies on statements of their Lordships in
Gouriet
v Union of Post Office Workers
[1978] AC 435. Lord Wilberforce said at 477B-C:
26. Reliance
is also placed on a passage at para 7.50 in the report of the Royal Commission
on Criminal Procedure 1981, which refers to the retention of the right of
private prosecution “as an effective safeguard against improper inaction
by the prosecuting authority”, and to a recent recommendation of the Law
Commission, contained in para 5.26 of its final report on “Consents to
Prosecution” (October 1998), to the effect that private prosecutions
might be made subject to a statutory provision requiring the consent of the CPS.
27. In
my judgment this argument is also misconceived. The
obiter
dicta
in
Gouriet
are not reflected in the 1985 statute, which was of course enacted some seven
years after
Gouriet
was
decided. More particularly, it is simply quixotic to suggest that the DPP
should allow a private prosecution to go ahead if there has been
“inertia, partiality or improper action” by the public prosecutor -
namely himself - but not otherwise. Is he to be judge and jury on the question
whether he has let the public down? Their Lordships’ dicta in
Gouriet
do not with respect provide anything approaching a compulsory template of a
lawful policy to be adopted by the DPP for the execution of his duty under
ss.6(2) and 23(3).
28. The
argument here, at least as originally put forward in M’s skeleton
argument, was that because of his view (referred to in the reasons letter) that
private prosecutors are not bound to apply the Code when deciding whether to
institute proceedings, the DPP has erroneously proceeded on the basis that the
principles in the Code are irrelevant to his discretion under ss.6(2) and
23(3). But the DPP has nowhere stated that he regards the Code as
systematically or generally irrelevant to his power to discontinue. Indeed, as
I shall show, there are some aspects of the Code which are reflected in his
approach to the question, how his policy should be applied in this case. In
truth, however, it could not be right for the DPP to apply across the board the
same tests, in particular the “reasonable prospect of conviction”
test referred to in the correspondence, in considering whether to take over and
discontinue a private prosecution as the Code enjoins Crown Prosecutors to
follow in deciding whether to institute or proceed with a prosecution
themselves; the consequence would be that the DPP would stop a private
prosecution merely on the ground that the case is not one which he would
himself proceed with. But that, in my judgment, would amount to an emasculation
of s.6(1) and itself be an unlawful policy; and in fairness Mr Harrison (#7 of
M’s skeleton) made it clear that he did not submit so much. The very
premise of s.6(1) must be that some cases will go to trial which the DPP
himself chooses not to prosecute.
29. As
it seems to me the only points remaining in relation to the Code concern the
application of the DPP’s policy to the facts of this case, and I will
deal with that shortly.
30. The
argument here (#7 of the skeleton) is that such a test is impermissibly rigid.
It is said that the policy excludes “any assessment of evidential
deficiencies” and so amounts to an unlawful fetter of the DPP’s
discretion; and that it “also leads to a distorted evaluation of the
public interest factors”. In my judgment the test involves no unlawful
fetter of discretion. It is plain from the formulation “there is
clearly
no
case to answer” (my emphasis) that the DPP only intends to stop private
prosecutions on this ground where no reasonable decision-maker could conclude
that there was sufficient evidence for the case to go forward. That seems to me
to be a perfectly proper approach. Such a prosecution could offer no legitimate
benefit to anyone and would, potentially at least, be an abuse of the process
of the court. The test rightly identifies a class of case which should always
be stopped; if the case is not within the class, then the decision whether to
stop it will, of course, depend on the other two tests which, in my judgment,
amply contemplate an exercise of discretion in which all material factors will
be considered and whose application accordingly negates any unlawful fetter of
discretion.
31. As
regards any “distorted evaluation” of the public interest test, it
is clear that the three aspects of the policy are individually self-standing.
Their respective application in this case is a another matter, to which as I
have said I will come. But the applicants have a separate argument about the
public interest test.
32. Here
it is submitted (#8 of the skeleton) that the public interest necessarily
involves consideration of the likelihood of conviction, so that the evidential
test should not be hived off from that relating to the public interest. Mr
Harrison also argues that the public interest test as formulated -
“the
public interest factors tending against prosecution clearly outweigh those
factors tending in favour”
-
gets it the wrong way round; the test should be whether the public interest
factors in favour of the private prosecution outweigh those against.
33. I
see no reason why quite aside from the evidential test of no case to answer the
DPP should not, within his policy as presently formulated, have in mind the
likelihood or otherwise of conviction when considering where the public
interest lies. And I see no basis for the suggestion that the law should compel
the DPP to reverse the effect of the public interest factors so as to favour
discontinuance
unless
in his judgment they clearly point in the other direction. The test as
presently formulated seems to me designed to allow proper scope for the
operation of the right of private prosecution. The private prosecutor is very
likely to take a different view as to where the public interest lies than does
the DPP, and s.6(1), I think, implies that he is entitled to do so. The
approach urged by Mr Harrison would in effect require the private prosecutor to
persuade the DPP that his view of the public interest is plainly right. I
consider it strongly arguable that that would place an illegitimate constraint
upon the right of private prosecution; but it is enough to hold, as I would,
that the present public interest policy is perfectly consistent with the
objects of the statute and thus well within the proper discretion of the DPP.
34. Mr
Harrison directed similar criticisms to the third limb of the policy, but in
light of what I have said about the public interest test they possess no
separate force.
35. For
all these reasons, the DPP’s policy overall is in my judgment a lawful
one. The real question in the case is whether it has been lawfully applied. It
is clear that (a) the DPP maintains his view that the “reasonable
prospect of conviction” test in the Code would not be met in this case,
but that (b) the “no evidence” test is not met either (save as
regards the charge against D of attempting to pervert the course of justice,
with which I deal separately below). In those circumstances, the application of
the public interest test was crucial. In this context it is convenient to deal
first with Mr Harrison’s submission that the reasons letter shows that
the DPP has given improper and perhaps decisive weight to the “no
evidence” test. He relies on the sentence which follows the conclusion
that that test is not satisfied: “It was not right, therefore, for the
Service to take over the proceedings with a view to terminating them”,
and submits that it suggests the author of the letter considered that that was
the end of the matter. However after dealing with the particular issue
concerning the charge against D of attempting to pervert the course of justice,
the letter continues: “I also considered whether, nevertheless, there
were overriding public interest factors that should lead to the Service
intervening with a view to discontinuance”. I think the letter could have
been better expressed, so as to make it clear that the public interest test is
by no means secondary to the “no evidence” test. However I am quite
satisfied that there was no intention to downgrade or sideline the balance of
public interest factors. It is not really credible to suppose that author of
the letter misunderstood or failed to apply the very policy which he had just
clearly set out.
36. Mr
Harrison submitted that in light of everything that had gone before, and not
least Stuart-Smith LJ’s Scrutiny, there were
no
public
interest factors favouring continuation of the prosecutions of D and M. He said
that there is nothing in the reasons letter to show that the DPP accepted the
suggestion, urged forcefully and at length by the HFSG in the course of their
representations, that further evidence had come to light since the Scrutiny.
With this latter proposition I agree. But the reasons letter clearly implies an
acceptance that
some
factors existed which favoured the prosecutions. It stated: “I came to
the conclusion that any public interest factors tending against prosecution did
not clearly outweigh those in favour”. What were those in favour? If in
truth there were no factors which a reasonable decision-maker could regard as
going in favour of the prosecutions, then the DPP’s decision would be
vulnerable to a challenge on
Wednesbury[1]
grounds
(as indeed Mr Harrison claims it is) since there would be nothing in public
interest terms to weigh in the scales against discontinuance. When the case was
opened there was no affidavit from the DPP dealing with the point, nor did Mr
Havers’ skeleton argument articulate any such factors. So it was that,
effectively at the court’s invitation so that the matter could be
clarified, Mr Newell swore an affidavit for the DPP on 22 March 1999. He is the
CPS’ Director of Casework and the author of the reasons letter. Paras 2 -
4 are as follows:
37. One
of Mr Harrison’s complaints, advanced before this affidavit was sworn,
was that the policy should have taken account of para 10.1 of the Code which
includes this:
38. This
is one of the points relating to the Code which, as it seems to me, bear on the
application of the policy rather than the policy itself; and para 2(2) of Mr
Newell’s affidavit shows that regard was had to assurances or statements
made to D and M that for his part the DPP would not prosecute. Clearly it was
right to do so, within the public interest balance. But I think there is a
qualitative difference between the situation where the DPP himself goes back
upon a previous assurance not to prosecute and one where the DPP does not
change his mind but a private prosecutor chooses to instigate proceedings.
39. In
reply, having by then seen Mr Newell’s affidavit, Mr Harrison made
further submissions. While accepting that there could be a case in which a
single factor favouring prosecution might not be outweighed by a multiplicity
of factors going the other way, he submitted that if the raft of public
interest considerations favouring discontinuance in this case was held not to
be enough to outweigh the single factor of the allegations’ gravity, it
was difficult or impossible to imagine what set of considerations might do so;
and the court should conclude that DPP had fettered his discretion by treating
the seriousness of the allegations as overriding everything else, so that he
had not in truth carried out a proper balancing exercise at all.
40. I
would reject this argument. There is no reason to suppose that the factors
against prosecution were not properly weighed and considered, and certainly no
basis for the supposition that once faced with a private prosecution for
something as serious as manslaughter the DPP would inevitably decide to allow
it to proceed.
41. Mr
Harrison submitted next that Mr Newell’s affidavit showed that the DPP
had transposed from the Code the “seriousness of the charge” factor
as a consideration favouring the prosecution without also taking account of his
own view that the Code test of “realistic prospect of conviction”
was not met. I agree that the DPP’s view of the prospects of conviction
is a proper matter for him to consider, within the public interest test
contained in the policy, when deciding whether to discontinue; but, as it seems
to me, para 2(1) of Mr Newell’s affidavit shows that in this case he has
done so.
42. Then
Mr Harrison suggested that para 3 of the affidavit demonstrated that the
DPP’s view of the gravity of the allegation was informed simply by the
fact that there was a manslaughter charge. He had not properly considered the
real degree of culpability inherent in the facts alleged; and the gravity of
the offence of manslaughter can vary very widely. There is nothing in this. Mr
Newell made it perfectly clear that he had regard to the species of
manslaughter in question (“criminal negligence”) and it cannot
sensibly be doubted that he was well aware and took account of the
circumstances in which the alleged offences are said to have been committed.
43. Lastly
on this part of the case Mr Harrison submitted that the refusal to discontinue
was simply perverse, given the “enormous weight” of the public
interest considerations going the other way.
44. The
DPP might, in my judgment, lawfully have decided to discontinue. The tragic
events at Hillsborough have been the subject of repeated, detailed, thorough
enquiries. Nearly ten years have passed. But the judgment was for the DPP to
make. If we acceded to Mr Harrison’s submission, we would I think usurp
the role of the primary decision-maker.
45. In
my judgment the decision not to discontinue is no more unlawful than is the
policy which the DPP applied.
46. Mr
Harrison discretely submits that the decision to let the charge of attempting
to pervert the course of justice go ahead was unlawful, because it runs flat
counter to the “no case to answer” test in his own policy. It will
be recalled that the reasons letter said:
48. I
of course accept that Mr Newell did not subjectively believe - or intend -that
the policy covered this situation. But the policy has to be read objectively;
there can be no doubt that it gave rise to a legitimate expectation on the part
of D and M that it would be applied according to its terms. The first question,
then, is as to the true meaning of the policy on a fair reading of the letter
of 27 July 1998 and the reasons letter. It is true that the letters use the
singular: “the prosecution” and “a private
prosecution”. But it is elementary that in criminal cases each count
constitutes a separate indictment; it is as if there are separate trials
relating to each. And this is no mere technicality; for it means, of course,
that where there is more than one charge any question whether there is
“no case to answer” is, as regards each individual charge, wholly
discrete. I do not consider that the policy can fairly be read as indicating
that the DPP would necessarily either take over or discontinue a private
prosecution in its entirety. In my view the articulation of the “no case
to answer” test would be taken by any informed reader, facing a multiple
private prosecution, to imply that the DPP would consider whether in his view
there was clearly no case to answer
on
each charge
.
49. The
DPP concluded that there was clearly no such case in relation to this charge
against D, and yet decided to allow it to proceed. It follows, in my judgment,
that there is a breach of D’s legitimate expectation that the policy
would be applied. The pragmatic factors spoken to by Mr Newell in para 6 can
make no difference. Nor, of course, can the vigorous assertion by the HFSG that
there is in fact a case to answer. What matters for present purposes is the
DPP’s conclusion on that issue.
50. For
these reasons I would quash the DPP’s decision only so far as it relates
to this charge against D. I make it clear that I say nothing as to what might
follow as regards any further decision concerning that charge to be made by the
DPP.
52. First
I should describe the further facts which are specifically relevant to the
second case. These must be read into the narrative of events which I have
already given in relation to the first case; it seems to me clearer and more
convenient to isolate here the particular facts which bear on the challenge to
the decision of the SYPA.
53. The
history shows that at earlier stages the SYPA had been prepared to provide
financial support for D and M (and other officers) to be legally represented in
matters arising from the Hillsborough disaster. On 7 December 1990 they
resolved to fund the representation of six police officers, including D and M,
at the inquest. They had earlier resolved not to do so; the decision of 7
December was taken after considering “the most recent legal advice
available”. Then on 1 August 1997 the SYPA resolved to set aside
£500,000 for financial assistance for police officers in connection with
Stuart-Smith LJ’s Scrutiny. In both instances they had considered a
report from the Chief Constable (or a joint report of the Chief Constable and
the Clerk and Treasurer). The latter decision was said to be taken “in
accordance with the principles set out in Home Office Circular No 77/87
Financial Assistance to Police Officers in Legal Proceedings”, to which I
will have to refer.
54. On
27 February 1998, following publication of the Scrutiny, and considering that
“there were indications that private prosecutions could be brought
against 3 officers”, the SYPA resolved in principle to authorise
consideration being given to applications by officers for financial assistance.
On 5 March 1998 D’s application for such assistance was approved by the
SYPA, and M’s was approved on 29 June 1998. It will be recalled that
three days earlier, on 26 June, AA had first sought to institute criminal
proceedings against D and M in the South Sefton Petty Sessional Division. On 20
November 1998 M applied for further financial assistance in relation to the
judicial review which was then seen to be in prospect should the DPP decide to
allow the private prosecutions to continue; and the HFSG had made it clear that
were the DPP to take over the prosecutions and discontinue, they would seek a
judicial review. On 21 December 1998 counsel for D and M indicated to the
Stipendiary Magistrate their intention to seek a judicial review of the
DPP’s decision; I have already referred to this in dealing with Mr
Jones’ misconceived argument that the first case should be dismissed on
grounds of delay. The following day, 22 December 1998, in a letter of over six
pages AA made written representations on leading counsel’s advice to urge
the SYPA that the decision to fund the defences of D and M was “unlawful,
irrational,
ultra
vires
and procedurally improper on various grounds”. On 23 December 1998 D
applied for further financial assistance in relation to the prospective
judicial review proceedings. On 5 January 1999 AA wrote a further lengthy
letter to the SYPA repeating and expanding her assertions that the funding
decisions were unlawful.
55. Then
on 5 February 1999 the SYPA passed the resolutions under challenge,
“that, on balance, the Authority has no legal power to provide financial
assistance” to D and M in respect either of the private prosecution or a
judicial review of the DPP’s decision. On 10 February 1999 the
CCSY’s application for judicial review in these proceedings was lodged,
and on the same day solicitors for the SYPA wrote to the Crown Office to
consent to the grant of leave and seek expedition. They stated:
56. The
legality or otherwise of the decisions under challenge ultimately turns on the
construction and application of s.6(1) of the Police Act 1996 and s.111(1) of
the Local Government Act 1972. I shall have to look at other statutory
provisions, but it is convenient to set these out at once. The cross-heading to
s.6 reads “General functions of police authorities”, and ss.(1)
provides:
58. S.111(1)
applies to police authorities (but in light of my conclusions it is unnecessary
to go into the legislative history relating to that). Now, it might be thought
-indeed this is the applicants’ case - that by s.6(1), securing
“the maintenance of an efficient and effective police force” is
plainly made the function of a police authority, and that accordingly it is no
less plain that s.111(1) empowers the police authority to do such things as
fund the legal representation of police officers in proceedings if the
authority reasonably concludes that to do so is conducive to that
function’s discharge. That has been the settled view of the Association
of Chief Police Officers, the Police Superintendents Association, and (until
1998) the Home Office. The decision to provide such finance, in common with any
decision taken under s.111(1), would of course be subject to well known public
law constraints enshrined in the
Wednesbury
and
Padfield[2]
principles.
There is before the court an affidavit of Mr Daines, Assistant Chief Constable
of South Yorkshire, in which he describes what he regards as the
“absolutely vital” requirement “that officers should know
that if they act in good faith in performing their duties their Police
Authority will support them in the event that they face litigation”. If
as a matter of
vires
s.111(1) allows a police authority to incur expenditure in furtherance of the
general function seemingly conferred by s.6(1), then in my judgment the use of
s.111(1) to finance police officers’ legal expenses in litigation,
including private prosecutions brought against them and the bringing of
judicial review proceedings, cannot in principle be ruled unlawful on
Wednesbury
or
Padfield
grounds.
The circumstances in which such funding might be provided in any particular
case is another matter. The policy has in the past been to the effect that the
authority must be satisfied that the officer has acted in good faith in the
discharge of his duty; and I can see that, at least where a private prosecution
is involved, there may be issues for the authority to consider which would
involve their taking a view of the merits in advance of any trial. But in these
proceedings we are not concerned with any question whether, when, or to what
extent the SYPA might provide financial assistance to D or M. We are only to
decide whether the power exists to do so at all.
59. In
fact the argument of the CCSY was put two ways by Mr Baker QC. It was first
said that s.6(1) of itself, without the aid of s..111(1), enabled the funding
decision. Alternatively, it was enabled by s.111(1) read with s.6(1).
60. Upon
this issue Miss Baxendale QC for the SYPA submits that the apparently obvious
relation between s.6(1) and s.111(1) is in fact no relation at all. The essence
of her argument may be expressed very shortly, as follows.
61. There
is no doubt that express powers are conferred on police authorities by a raft
of statutory provisions. Miss Baxendale says that such provisions support
proposition (a) which I have set out, by application of the canon of statutory
construction expressed by the Latin maxim
expressio
unius est exclusio alterius
.
Thus, she submits, where Parliament has seen fit to confer a range of specific
powers on police authorities, the intention must have been thereby to set the
limits on what such an authority may do and it cannot be supposed that s.6(1)
provides an undefined and open-ended power to do anything else which the
authority may choose, merely on the ground that in some way it may be said to
support the general aim of “the maintenance of an efficient and effective
police force”. The high water-mark of this submission is found in s.88(4)
of the Act of 1996 which confers an express power to fund police
officers’ costs in certain circumstances which do not include the defence
of private (or any) criminal prosecutions or participation in proceedings for
judicial review.
62. I
shall have to look in a little more detail at s.88(4). I have concluded,
however, that the correctness or otherwise of proposition (a) is not in the end
at the centre of the case. The reason is that in the particular statutory
context proposition (b) is in my judgment wrong; so that the SYPA is enabled by
s.111(1) (subject to
Wednesbury
and
Padfield)
to
finance D and M in the criminal and judicial review proceedings even if s.6(1)
confers no powers as such.
63. The
scheme of the Act of 1996 involves the distribution of responsibilities between
three bodies: the Chief Constable, the Secretary of State, and the police
authority. The Chief Constable’s role is principally given by s.10:
65. As
regards the Secretary of State’s position I should notice also these
provisions of the Act of 1996:
66. The
role of the police authority is given first by the subsections of s.6 which
follow subsection (1):
67. These
provisions, of course, confer duties rather than powers. In relation to the
police authority I should next notice ss.7 - 9:
69. Looking
at the whole picture displayed by these provisions, it is clear that the Chief
Constable is in charge of day-to-day policing (s.10(1)); the police authority
has a role in relation to policy, or strategy (ss.7, 8 and other provisions);
but this is subject to the overall direction of the Secretary of State (ss.37,
38, 39 and other provisions, taken with s.6((2) - (4)). The police authority
holds the purse (s.14). Those provisions specifically concerned with the police
authority’s role confer duties rather than powers, though in some cases
there is clearly a discretion as to how the duty is to be performed (as for
example under s.37). Other powers (including those contained in s.111(1)) are
conferred on the police authority by the local government legislation, to the
extent that measures there contained were applied to police authorities by
s.146A(1) of the Act of 1972. The powers so conferred are listed in a helpful
note provided by Miss Baxendale. I do not propose to set them out. They include
(apart from s.111(1)) such matters as the disposition and treatment of staff
and the acquisition and disposal of land.
70. The
critical point which in my judgment emerges from a consideration of the
interlocking roles of Chief Constable, Secretary of State and police authority
is that it cannot have been within the contemplation of Parliament in enacting
the scheme, and in embracing within it s.111(1), that the police authority
should
only
be empowered to incur expenditure in support of those duties, and ancillary
powers, which are specifically conferred upon it. The police authority holds
the funds from which expenses for its local police force will be supplied:
s.14. It is inherent in the system (as Mr Baker submitted in reply) that the
Chief Constable will apply to the authority for authorisation to incur
expenditure; it may be for the use of resources such as helicopters, or the
installation of video surveillance systems in city streets, or a host of other
things. No doubt the Chief Constable presents a general budget. We were not
referred to any provision in statute which shows or suggests that the police
authority’s power to accede to such requests rests in anything other than
the combination of s.6(1) and s.111(1). Given this, it seems to me plain that,
in the particular context before us in this case, the legitimate scope of the
ancillary power provided by s.111(1) cannot be restricted so as to support only
those powers and duties which are expressly conferred on the police authority.
Those powers and duties are
themselves
ancillary;
though they are very important, they take second place to the Chief
Constable’s tactical role, and second place also to the Secretary of
State’s strategic role. S.111(1) must in context (whatever it does in
other cases) allow the police authority to support what its express powers and
duties also support; and this is no less than its general function conferred
by s.6(1). If that is right, the authority may in principle decide to fund
officers’ legal representation in proceedings no less than they may fund
any other activity which the Chief Constable might propose as being conducive
to “the maintenance of an efficient and effective police force for its
area”.
71. This
result is supported, if only
ex
silentio
,
by the decision of this court in
R
v Derbyshire Police Authority ex p. Wilson
(8 August 1989, unreported save in
The
Times
).
The court had to consider a decision of the police authority not to contribute
to the legal expenses of two police officers in relation to an auditor’s
enquiry. The court assumed that s.4 of the Police Act 1964 (the predecessor of
s.6(1)) provided the power to grant financial assistance. However the point of
principle was not argued. The applicants also point to other materials. In 1962
the report of the Royal Commission on the Police was published. It indicated
the then current practice in relation to the provision of financial support to
police officers in civil proceedings, which included a requirement that
“a constable must have acted in good faith in the intended execution of
his duty” (para 196(a)). Para 197 stated:
73. On
17 February 1998 Home Office Circular 4/1998 was published. Unlike its
predecessor it sits on the fence as regards the power of a police authority to
fund defences to private prosecutions. It has no persuasive effect one way or
the other upon the issues in these proceedings. The earlier Circular, though
obviously not a source of law, may possibly possess some force as regards the
purposes to be fulfilled by s.6(1)’s predecessor in s.4(1) of the Police
Act 1964: see per Scarman LJ as he then was in
Bristol
DC v Clark
[1975]
3 AER 976, referred to in
Wilson.
But there are great dangers in treating government pronouncements, however
helpful, as an aid to statutory construction. I would prefer to base my
conclusion, that s.111(1) in principle empowers the SYPA to support D and
M’s defence (and their participation in the judicial review against the
DPP), upon those considerations touching the correct construction of the
material statutory provisions which I have already set out.
74. If
my Lords agree with this conclusion, it is enough to dispose of the case in the
applicants’ favour. However we heard much argument on the question
whether s.6(1) conferred on the police authority any power, in any
circumstances, to take action not otherwise expressly authorised. This engages
Miss Baxendale’s proposition (a) as I have described it, and her reliance
on the
expressio
unius est exclusio alterius
doctrine.
It only has relevance if I am wrong to hold, as I have done, that s.111(1) in
principle enables the SYPA to fund D and M even if s.6(1) does not itself
empower the authority to do anything. In this context I will deal only (and
that shortly) with s.88(4) of the Act of 1996, which as I have said is the high
water-mark of this part of Miss Baxendale’s argument.
75. S.88
contains a comprehensive scheme as to liability on the part of the police for
torts. By ss.(1) the chief officer of police for a police area is liable in
respect of torts committed by constables under his direction and control in the
performance or purported performance of their functions. Without this provision
there would be no such liability because police officers are not servants but
office-holders. Ss.(2) provides in part:
76. In
my judgment this provision offers no support for Miss Baxendale’s
reliance on the
exclusio
alterius
rule.
S.88 is self-standing. It has no implications for the general reach of the
police authority’s functions. And once s.88(4) was to allow the police
authority to cover damages awarded against an officer in a tort action, it is
no surprise that it covers costs as well. If it did not, there might well be an
argument - based on the
exclusio
alterius
rule
- that costs were deliberately excluded.
77. In
all these circumstances I do not think it necessary to go into the legislative
history of s.6(1), or to canvass the arguments which were addressed to us as to
the construction or effect of its predecessor, s.4(1) of the Police Act 1964.
In the end there are two possibilities: s.6(1) empowers the police authority to
do things, or it does not. I have so far proceeded on the assumption asserted
by Miss Baxendale that it does not; but given that assumption, nevertheless for
reasons I have sought to explain the SYPA possesses in principle the legal
power to fund D and M.
78. In
fact I think the better view is that s.6(1) enables the police authority to do
things which reasonably support the function which s.6(1) confers. Such a power
is by no means open-ended. It would not allow the authority to invade the
provinces of the Chief Constable or the Secretary of State; and this is an
important and considerable constraint.
79. In
the course of argument some time was spent, in fairness at the encouragement of
the court, in seeing whether the specific provisions in the Act of 1996 or the
local government legislation, conferring specific powers on the police
authority, left gaps which only s.6(1) could fill. Points were made about lower
ranks’ rights of representation in legal proceedings, which are covered
as appropriate by the Police Federation; and about the representation of higher
ranks in various forms of legal proceedings. But the answer to the question we
must decide, whether the power to fund D and M in principle lies in the hands
of the SYPA, cannot in my judgment depend on a trawl through all the things a
police authority is expressly empowered to do. The provisions which expressly
confer and impose powers and duties on police authorities do not constitute an
independent code. The police authority’s functions are, to use a
questionable modernism, symbiotic with those of the Chief Constable and the
Secretary of State. So judged, and for the reasons I have given, they allow the
use of s.111(1) to fund officers in the defence of private prosecutions and in
judicial review proceedings.