England and Wales High Court (Administrative Court) Decisions

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:

8. Para 5 of Chapter 7 (“Summary”) stated:

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.

12. Section 3(2) of the POA provides so far as relevant:

13. S.6 provides so far as relevant:

14. S.10 provides so far as relevant:

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:

25. Lord Diplock said this at 498B:

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:

47. Paras 5 and 6 of Mr Newell’s affidavit state as follows:

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.

51. Otherwise, for the reasons I have given I would dismiss the application in the first case.

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:

57. S.111(1) of the Act of 1972 in its present form 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:

64. The role of the Secretary of State is principally given by ss.36 and 37(1):

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:

68. S.14 is important:

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:

72. Home Office Circular 77/1987, published on 4 December 1987, 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.

80. I would allow this application. It will be appropriate to hear counsel as to relief, and costs.