Crompton, R (on the application of) v Police and Crime Commissioner for South Yorkshire & Ors, Court of Appeal - Administrative Court, June 09, 2017, [2017] EWHC 1349 (Admin)

Issuing Organization:Administrative Court
Actores:Crompton, R (on the application of) v Police and Crime Commissioner for South Yorkshire & Ors
Resolution Date:June 09, 2017
 
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Case No: CO/5079/2016

Neutral Citation Number: [2017] EWHC 1349 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 09/06/2017

Before:

LADY JUSTICE SHARP

and

MR JUSTICE GARNHAM

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Between:

The Queen

on the Application of

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Hugh Davies QC and Jessica Boyd (instructed by Kingsley Napley LLP) for the Claimant

Jonathan Swift QC and Joanne Clement (instructed by Bevan Brittan LLP) for the Defendant

Clive Sheldon QC and Christopher Knight (instructed by HMIC ) for the First Interested Party

Mr Adrian Phillips (solicitor) for the Second Interested Party

Hearing dates: 28th & 29th March 2017

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Judgment

Mr Justice Garnham

Introduction

  1. This is the judgment of the Court.

  2. On the 15 April 1989, 96 people were killed in the disaster at Hillsborough Stadium in Sheffield during the course of the FA Cup semi-final game between Liverpool and Nottingham Forest.

  3. On the morning of 26 April 2016, the jury hearing the inquests into the deaths of the 96 returned their verdicts (or, more accurately, their determination). Later that day the Chief Constable of South Yorkshire (hereafter ``the Chief Constable'') issued a full apology on behalf of the force.

  4. At 12.20pm the following day, 27 April 2016, the Chief Constable issued a second statement. At 2.50pm the Police and Crime Commissioner for South Yorkshire (``the Commissioner'' or ``the PCC'') suspended the Chief Constable from his office. On 29 September 2016, following the application of the appropriate statutory procedure over the intervening months, the Commissioner formally called upon the Chief Constable to resign and he did so.

  5. This case concerns the lawfulness of the Commissioner's conduct.

    The Challenges

  6. The Chief Constable seeks to judicially review the decision making of the Commissioner. The Chief Constable argues that the PCC's decision on the 27 April 2016 to suspend him, the decision of 4 July to maintain that decision following receipt of the views of Her Majesty's Chief Inspector of Constabulary (``HMCIC''), his decision on the 15 August to continue the process despite receipt of representations submitted on behalf of the Chief Constable, and his decision of the 29 September 2016 to call on the Chief Constable to resign with immediate effect, were all flawed. The Chief Constable argues that each of those decisions was irrational, disproportionate, took account of irrelevant considerations and breached his rights under Art. 8 of the European Convention on Human Rights (ECHR).

  7. The Chief Constable is supported in his arguments by HMCIC.

  8. The PCC resists each of the challenges, maintaining that he was entitled to take each of the decisions under challenge. The South Yorkshire Police and Crime Panel (the ``PCP'') is, in essence, neutral on the issues of substance but argues it is unnecessary for the Court to scrutinise its action given the part it played in the process.

  9. The Chief Constable needs permission to bring these proceedings. Mrs Justice Lang adjourned his application for permission and directed that the case be listed as a ``rolled up'' hearing at which the grant of permission would be considered and the substantive hearing would follow if permission was granted. Her ruling made clear that, in her view, the Chief Constable had raised arguable grounds of challenge but that the grant of permission should await this court's ruling on the PCC's argument that the challenges to the decisions of the 27 April and 4 July were out of time.

  10. We received detailed and helpful skeleton arguments from Mr Hugh Davies QC and Ms Jessica Boyd on behalf of the Chief Constable, Mr Jonathan Swift QC and Ms Joanne Clement on behalf of the PCC, Mr Clive Sheldon QC and Mr Christopher Knight on behalf of the First Interested Party, HMCIC, and from Mr Adrian Phillips on behalf of the Second Interested Party, the South Yorkshire Police and Crime Panel. We heard careful and well-argued submissions from all concerned at a hearing on the 28 and 29 March 2017. We record here our gratitude to all counsel and solicitors involved.

    The History

  11. A proper understanding of the detail of the history of these events is essential to a fair adjudication of this challenge. We therefore set out that history at a little length.

    The Parties

  12. The Claimant, David Crompton, was appointed Chief Constable of South Yorkshire on 24 January 2012. Prior to the conclusion of the Hillsborough Inquest, Mr Crompton had indicated an intention to retire from the post of Chief Constable in November 2016. He had had no involvement in South Yorkshire Police at the time of the Hillsborough disaster.

  13. The Defendant, Alan Billings, was elected Police and Crime Commissioner for South Yorkshire on 3 November 2014. He was re-elected as PCC on 5 May 2016.

  14. Sir Thomas Winsor was appointed as HMCIC on 1 October 2012.

    The Hillsborough Inquests

  15. In December 2012 the High Court quashed the verdict in the original inquest into the deaths at the Hillsborough Stadium and ordered fresh inquests to be held. Sir John Goldring was appointed Assistant Coroner for South Yorkshire (East) and West Yorkshire (West) to conduct those inquests. They commenced on 31 March 2014 in Warrington.

  16. Seven months into those lengthy proceedings, on 31 October 2014, the Coroner refused an application made by the families of the deceased to admit into evidence South Yorkshire Police's previous apologies. Sir John Goldring concluded:

    ``I have come to the clear conclusion that for a number of different (and independent) reasons it would be wrong to admit this evidence. It would have no or little probative value. It would be highly prejudicial. It would divert the jury into complex avenues which would be collateral to the real issues. It would for no good reason further prolong the inquests. Moreover, I do not think that Ms Barton's conduct of the chief constable's case would justify the admission of such evidence. Her criticisms ... were not necessarily inconsistent with the admissions made by the chief constable. While her questioning regarding the perimeter gates might not have been wise, it does not begin to justify the admission of this evidence.''

  17. The inquest jury returned their verdict at approximately 11am on 26 April. The jury's findings included the following:

    i) By a majority of 7 to 2, the jury indicated that they were satisfied, so that they were sure, that those who died in the disaster were unlawfully killed.

    ii) They determined that there was no behaviour on the part of football supporters which caused or contributed to the dangerous situation at the Leppings Lane turnstiles at Hillsborough.

    iii) They determined that there had been a number of errors and omissions by South Yorkshire Police that had caused or contributed to the deaths.

    iv) They found in particular, that there were errors or omissions by the police after the crush in the West Terrace at the ground which caused or contributed to the loss of lives.

    v) They concluded that, after the crush in the West Terrace had begun to develop, there were errors or omissions by the ambulance service which caused or contributed to the loss of life.

    vi) They concluded there were features of the design, construction and layout of the stadium which were dangerous or defective and which caused or contributed to the disaster.

    vii) They concluded that there were errors or omissions in the safety certification and oversight of the stadium that caused or contributed to the disaster.

    viii) They found that there were errors or omissions by Sheffield Wednesday Football Club in the management of the stadium and preparation for the match which caused or contributed to the dangerous situation which developed on the day of the match.

    ix) They concluded that there were errors or omissions by Sheffield Wednesday Football Club on 15 April 1989 which may have caused or contributed to the dangerous situation that developed at the Leppings Lane turnstiles and in the West Terrace.

    x) They found that Eastwood and Partners should have done more to detect and advise on any unsafe or unsatisfactory features of the Hillsborough Stadium which caused or contributed to the disaster.

    Reaction to the Inquest

  18. On 25 April 2016 it was widely reported that the inquest's findings would be delivered the following day. A meeting was held that same day, involving the Chief Constable and other senior officers at South Yorkshire Police, and the PCC and his staff, at which the appropriate response from South Yorkshire Police was discussed. It was agreed that the Chief Constable would issue a clear and unequivocal statement of apology on behalf of South Yorkshire Police after the findings were delivered.

  19. In the days leading up to the verdict, the PCC asserts, he had telephone conversations with a number of local MPs who expressed:

    ``...their views on how perilous the situation could be for South Yorkshire Police particularly in light of various other historical matters that had already undermined public confidence in South Yorkshire Police. This included the recent failures in respect of child sexual exploitation in Rotherham and the call for a public inquiry into South Yorkshire Police's conduct at Orgreave during the 1984/85 miners' strike''.

  20. On 22 April 2016 the PCC invited South Yorkshire MPs to a briefing to discuss the implication of the forthcoming verdicts. According to the PCC:

    ``The question was how much more damage to its reputation could the force could sustain before there was an intervention resulting in possibly disbanding the force, a forced merger or imposing a new leadership team. I shared those concerns.''

  21. On the evening of 25 April 2016 the PCC spoke with Jack Dromey MP who was a member of the shadow home affairs team. He told him that the Shadow Home Secretary, Andy Burnham MP, was intending to make a statement in the House of Commons on 27 April 2016 and ``that he intended to call on the...

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