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Holding chief officers to account – the margin of appreciation

The PCC's decisions to suspend and require the resignation of the chief constable of SYP over statements about the Hillsborough verdict were…

R (on the application of David Crompton) v South Yorkshire Police and Crime Commissioner [2017] EWHC 1349 (Admin)

Administrative Court (Sharp LJ, Garnham J)

Executive summary

The Police and Crime Commissioner’s (PCC) decisions to suspend and require the resignation of the chief constable of South Yorkshire Police over statements about the verdict in the Hillsborough inquest were irrational. The chief constable’s second statement after the shadow Home Secretary had criticised the police response did not damage public confidence. The chief constable should have been afforded a ‘margin of appreciation’ to act as he did.

Background

The inquest jury gave their verdicts in the Hillsborough inquest on 26 April 2016. They found the deceased had been unlawfully killed and that a number of errors and omissions by South Yorkshire Police caused or contributed to the deaths. Other failings were identified such as the design and construction of the stadium.

The chief constable made an initial statement that day unequivocally accepting the jury’s findings. The shadow Home Secretary then asked the chief constable to explain why, in the course of the inquest, he had gone back on an earlier apology made in 2012.

The chief constable believed a response was necessary and produced a draft to the PCC’s solicitor which was amended following comment. The PCC was of the view that no further statement should be issued but any wording was a matter for the chief constable.

The further statement was issued at 12.20pm on 27 April 2016 and again accepted the jury’s findings. It explained that the coroner had declined to admit the 2012 apology as evidence at the inquest but had not found the chief constable’s conduct to be inconsistent with it. The statement accepted the failings of the police but stated that they had to be seen in ‘the context of other contributory factors’.

The Commissioner received a telephone call from an MP at 1.45pm saying that the statement had been very badly received and was seen as defensive and self-serving. The PCC also stated that at 1.50pm a member of one of the Hillsborough families had rung requiring the chief constable to resign. The PCC then saw the chief constable at 2.00pm and told him that he had the choice of resigning or being suspended: a response was required by 3.00pm. The chief constable asked to consider the matter overnight. The PCC refused and the chief constable was suspended.

The chief constable judicially reviewed that decision and the PCC’s maintenance of that decision following representations by Her Majesty’s Inspectorate of Constabulary (HMIC) that suspension was not appropriate.

He also challenged the PCC’s subsequent decision on 29 September 2016 to require him to resign. He challenged all the decisions as irrational and also disproportionate under Article 8 of the ECHR.

Decision

The relevant statutory provision was Section 38 of the Police Reform and Social Responsibility Act 2011 (the Act). That gave PCCs the power to suspend and remove chief constables but required them to take into account the Policing Protocol in exercising those powers.

The court held that the PCC was entitled to hold the chief constable to account in the exercise of any of his functions. The proper legal test to apply was whether the acts of the PCC fell within the range of reasonable responses and whether they were lawful, procedurally proper and rational. In applying this test the court proceeded on the basis that the Policing Protocol qualified the Commissioner’s powers. It required goodwill, professionalism, openness and trust between the chief constable and the PCC. This, the court found, accorded the chief constable a margin of appreciation in the decisions he took.

The court also found that Article 8 of the ECHR was engaged and proportionality was an element of that test.

The court ruled that the decisions of the PCC were irrational. Firstly, it was properly open to the chief constable to make his second statement following the statement of the shadow Home Secretary. The PCC should have warned the chief constable of the risks he was running in issuing the second statement in his chosen form. The court also believed that it was unreasonable to regard holding the chief constable to account as synonymous with suspending him.

The PCC argued that the second statement could be seen as implying criticism of the Liverpool supporters. The court rejected that argument, stating that, since the chief constable accepted the findings of the jury, his reference to ‘other contributory factors’ could only refer to other failures identified by the jury. The court was also not convinced that there had been an adverse public reaction to the second statement.

Given the margin of appreciation to be afforded, the PCC’s decision to exercise his Section 38 powers was irrational. The chief constable’s response to the shadow Home Secretary’s call for a further statement was comfortably within the range of reasonable options.

It followed that the maintenance of these decisions and the requirement to resign were also irrational. HMIC had advised that this was not a suitable case for the use of Section 38. The PCC should have followed that guidance unless he had cogent reasons for not doing so.

It also followed that the decisions to suspend and require the chief constable to resign were not proportionate and were in breach of Article 8.

Comment

This case turns on its facts but certain general principles emerge. The statutory relationship between PCCs and chief constables requires balance – chief constables must be accountable but require operational independence. The balance is struck by allowing them to operate within a reasonable margin of appreciation. PCCs’ Section 38 powers are qualified by the Policing Protocol and guidance from HMIC should usually be followed.  

For any further information on the above please contact John Riddell, Partner john.riddell@weightmans.com